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American 

Law  of  Real  Estate 

Agency 


Including 

Options,  Purchases,  Sales,  Exchanges, 
Leases,  Loans,  Etc. 

The  duties  and  liabilities  of  Principals 
and  Agents.  The  earning  of  com- 
missions by  Real  Estate  Brokers, 
and  Pleading,  Practice  and  Judicial 
Constructions  and  Interpretations 


By 
WILLIAM  SLEE  WALKER 

(OF     THE     CINCINNATI     BAR) 


CINCINNATI,  O. 

THE  W.  H.  ANDERSON  COMPANY 

LAW  BOOK  PUBLISHERS 
1910 


\9io 


Copyright 

THE  W.  H.  ANDERSON  COMPANY 

1910 


1- 


fe 


PREFACE 


Under  our  dual  system,  Imperium  in  Jmperio,  the  various 
States,  through  their  respective  high  courts  of  judicature,  give 
us  a  richness  and  a  variety  of  authoritative  decisions.  "  I  do  not 
call  one  greater  and  one  smaller.  That  which  fills  its  period 
and  place  is  equal  to  any,"  whether  it  comes  from  Massachu- 
setts or  Montana,  from  Michigan  or  from  Mississippi. 

In  the  preface  to  his  Commentary  on  Agency  and  Agents 
(1876)  Prof.  Wharton  says: 

"I  have  thought  it  advisable  to  introduce  all  reported  judi- 
cial decisions,  no  matter  how  cumulative,  which  have  come  to 
my  notice  in  connection  with  the  topic  discussed.  No  doubt  in 
this  way  my  notes  may  appear  overloaded  and  my  table  of 
cases  redundant;  but  it  must  be  recollected  that  Agency  is  the 
creature  of  usage  as  established  by  the  courts ;  tnat  usage  can 
only  be  settled  by  cumulative  rulings,  and  that,  under  our 
American  system,  there  is  no  State  whose  adjudication  ^an  be 
safely  omitted  in  such  a  commentary  as  the  present." 

It  is  believed,  also,  that  a  need  exists  for  a  treatise  confined 
to  one  branch  of  the  law  of  Agency,  namely,  real  estate.  The 
general  treatises  fail  to  differentiate  some  of  its  peculiar 
features,  thereby  tending  to  perplex  or  mislead  the  lawyer  and 
the  jurist.  This  is  the  apology,  if  it  be  needed,  for  adding 
another  to  the  accumulated  heap  of  works  on  the  law. 

In  the  preparation  of  this  work  the  aim  has  been  to  present 
the  law  in  the  exact  words  of  the  courts,  and  to  devote  the 
book  to  setting  forth  their  language,  the  utterances  of  the 
judges  upon  the  various  phases  of  the  law  of  real  estate  agency. 
It  is  believed  that  in  this  way  the  lessons  conveyed  will  be 
more  impressive,  and  will  afford  a  clearer  conception  of  the 
underlying  principles  upon  which  the  superstructure  is  reare^. 
As  a  further  illustration,  of  this  feature  a  large  part  of  the 

iii 


iv  PREFACE. 

work  is  devoted  to  Pleading,  Practice  and  Judicial  Construc- 
tions and  Interpretations.  The  wealth  of  illustrations  thus  pre- 
sented will  be  especially  appreciated  by  the  younger  members 
of  the  bar.  It  is  a  continuation  of  the  study  of  cases,  a  method 
of  education  so  commonly  pursued  in  the  leading  law  schools 
of  the  country. 

Great  libraries,  where  all  the  reports  are  accessible,  are  ex- 
ceptional, and,  in  their  absence,  the  full  extracts  given  from 
the  opinions  of  the  courts  will  be  appreciated. 

I  take  this  occasion  to  express  my  heartfelt  appreciation  of 
the  kindness  extended  by  the  efficient  Librarian  of  the  Cin- 
cinnati Law  Library,  Edwin  Gholson,  Esq.,  and  his  competent 
and  accommodating  assistants. 

But  for  the  opportunity  of  access  to  the  Cincinnati  Law 
Library,  with  its  wealth  of  books  of  the  law,  a  work  of  this 
character  would  have  been  out  of  the  question. 

By  placing  the  decisions  under  their  respective  subjects  and 
by  supplying  suggestive  headlines,  it  is  believed  that  the  work 
has  been  so  arranged  as  to  thoroughly  illustrate  every  possible 
phase  of  the  law  of  real  estate  agency,  and  to  prove  a  mine 
of  wealth,  not  only  to  the  active  practitioner,  but  to  the  lay- 
man. The  latter  will  find  in  perusing  its  pages  a  history  of 
the  art  of  real  estate  agency,  presenting  instances  of  its  prac- 
tical application  that  can  prove  not  only  interesting  but 
exceedingly  instructive.  He  will  gain  a  knowledge  of  the  experi- 
ences of  others  which  can  not  fail  to  enlarge  his  understanding 
of  the  subject  in  which  he  seeks  to  excel,  as  well  as  to  gain  the 
advantages  of  being  able  to  avoid  the  pitfalls  into  which  those 
who  paid  for  the  experience  fell. 

•Many  cases  which,  at  first  sight,  may  seem  to  be  in  conflict, 
on  further  reflection  and  careful  perusal  will  be  found  to  fall 
within  some  one  of  the  general  classes,  the  special  circum- 
stances involved  clearly  distinguishing  them,  and  showing  that, 
although  apparently  in  conflict,  in  reality  they  are  not.  By 
supplying  full  references  to  all  the  cases  in  the  country  on  the 
subject,  such  a  comparison  can  be  brought  to  bear  as  can  not 
be  done  where  but  a  few  are  given.  Such  a  slight  divergence 
in  the  circumstances  often  requires  a  qualifying  of  the  rule, 
that   it  is  dangerous  to  carelessly   place   cases  in   agreement, 


PREFACE.  y 

when,  on  careful  reflection,  they  require,  from  some  essential 
element  in  the  case,  to  be  clearly  and  propci'ly  differentiated. 
On  that  account  the  enunciating  of  hard  and  fast  rules  has 
been  avoided.  Instead  of  this,  references  are  made  to  cases  in 
seeming  agreement  and  to  those  in  seeming  conflict.  In  this 
way  the  practitioner,  guided  by  the  facts  in  his  case,  will  be 
best  able  to  find  and  apply  the  law  applicable  to  its  solution; 
and  in  this  way,  also,  the  court  will  be  able  to  make  the  facts 
in  the  case  under  .consideration  agree  in  its  decision  with 
some  one  or  more  of  the  adjudicated  cases.  The  book  is  so 
richly  filled  with  clear  and  well-expressed  illustrations  of  the 
law  of  real  estate  agency,  in  almost  every  conceivable  phase, 
that  it  is  believed  it  will  serve  to  solve  almost  every  problem  in 
that  branch  of  the  law  that  may  be  presented. 

Where  cases  are  decided  according  to  the  general  law 
on  the  subject,  as  shown  by  the  agreement  of  the  decisions  of 
the  courts  of  the  various  States,  this  will  be  found  to  be  the 
best  method  of  dealing  out,  with  an  equal  hand,  justice  between 
man  and  man.  Nothing  is  calculated  to  produce  a  better  im- 
pression of  the  impartiality  with  which  justice  is  administered 
than  the  agreement  brought  about  by  the  courts  in  the  various 
States  applying  legal  principles  in  accordance  with  the  general 
consensus  of  opinion  illustrated  and  applied  by  the  unanswer- 
able reasoning  employed  in  well  adjudicated  cases. 

Cincinnati,  April  5,  1910.  Wm.  Sleb  Wal.kee. 


TABLE  OF  CONTENTS. 


PART   I. 
THX:   CONTRACT   OF   AGENCY. 


CHAPTER    I. 

SHX3TION  PAGE 

1.  Who  are  capable  of  becoming  principals  and  agents 1 

2.  Power  of  delegating  authority, 1 

3.  Inherent  power  of  becoming  agents 2 

4.  Personal  acts  that  are  undelegatable 2 

5.  Acts   that   cannot   be   sub-delegated 2 

6.  Special   and  general   agency 3 

7.  Agents  who  are  termed  brokers 3 

8.  Who  is  not  a  broker 4 

8a.  Definition  of  the  term  "brokerage" 4 

9.  Licenses    4 

10.     How  brokers  are  appointed 4 

IL     Employment   of   sub-agents ; .  4 

12.  Employment  of  brokers,  and  its  limitations 5 

CHAPTER    II.  -y 

13.  Exclusive  employment  as  broker  or  agent 8 

14.  Duration  of  the  agency , 10 

15.  Termination  of  the  agency 11 

16.  A  contract  coupled  with  an  interest 15 

17.  Special  contract  for  the  sale  of  real  estate 15 

18.  Authority  conferred  on  brokers  and  agents 19 


CHAPTER    HI. 

19.  Nudum  pactum,  a  contract  to  be,  effective  must  be  based  upon  a 

consideration    27 

20.  Unilateral  contracts    28 

vv  yii         ■■! 


Vlll  TABLE   OF   CONTENTS. 

SEX^nON  PAGE 

21.  Consideration  as  an  essential  constituent  of  an  enforceable  con- 

tract          29 

22.  Revocation  of  authority  granted  to  agent 30 

23.  Repudiation  or  rescission  of  the  contract 35 


CHAPTER   IV. 

24.  Ratification   37 

CHAPTER   V. 

25.  Privity 47 

26.  Power  of  attorney,  its  extent  and  limitations _. . .  47 

27.  The  attorney  in  fact 50 

28.  Assignees  and  assignments 50 

29.  Attorneys  at  law 61 

30.  Auctions  and  auctioneers 52 

CHAPTER   VI. 

31.  Architects , 53 

32.  Abstracts   of  title 53 

33.  Meeting  of  minds 54 

34.  Executors   and   administrators 55 

35.  Trusts  and  trustees 56 

36.  Principal  and  agent 58 

37.  Partnership   59 

CHAPTER    VII. 

38.  Corporations   61 

39.  Husband  and  wife 63 

40.  The   vendor 65 

41.  The  vendee  or  purchaser 67 

CHAPTER    VIII. 

42.  The  owner   73 

43.  Covenants    77 


TABLE   OF    CONTENTS.  ix 
SECTION                                                                                                                                                           PAGE 

44.  Conditional   contracts 78 

45.  Condition    precedent   to   taking   effect 78 

46.  Death,  and  its  effect  on  contracts 7'J 

47.  Approval  of  principal 79 

48.  Abbreviations    SO 


CHAPTER   IX. 

49.  Ambiguous  contracts 81 

60.  Banks   81 

51.  Consent    ^2 

52.  Caveat  emptor    83 

53.  Credit   84 

54.  Contingency 84 

55.  Changes  in   contracts 8P 

56.  Counter    proposition 86 


CHAPTER   X. 

57.  Deeds    87 

58.  Deeds,  their  execution  by  agents 69 


CHAPTER   XL 

69.     Description  of  property 91 

60.  Drunkenness    92 

61.  Fixed   price 02 

62.  Guardian  of  minor 93 

63.  Undivided    interest 94 

64.  Interest  of  tenant  in  common 94 

65.  Contract  conditional  on  securing  other  interests 95 

66.  Consolidation  of  interests  not  a  sale 95 

67.  Payments  in   installments 95 

68.  Introduction  of  prospective  purchaser 96 

69.  Indirect  acts  ineffectual  to  establish  contractual  relations 96 

69a.  Indirect  sale  which  authorizes  commissions  to  broker 97 

70.  Information  acted  on  by  broker  not  establishing  contractual   re- 

lations    97 

71.  Insurance  company,  broker  obtaining  loan  from  not  agent  of 97 


TABLE   OF   CONTENTS. 


CHAPTER    XII. 
SECTION  PAGE 

72.  Written  proposition  from  proposer  and  acceptance  by  agent  makes 

binding  contract 99 

73.  On  failure  of  vendor  to  re-execnte  contract  after  purchaser  ma- 

terially altered,  no  meeting  of  minds 99 

74.  Signature   of   principal   by   agent 100 

75.  Signature  of  principal  by  agent  should  be  followed  by  his  as  agent  100 

76.  Signature  of  B,  as  attorney  for  parties  of  first  part,  failed  to  bind 

the   principal 100 

76a.  Agent  contracting  as  principal  personally  liable  as  such 101 

77.  Signature  placed  at  bottom  or  top  suffices 101 

78.  The  word  subscribed  equivalent  to  signed 101 

79.  In  some  States  a  contract  to  divide  commissions  must  be  in  writ- 

ing        101 

79a.  Unless  barred  by  statute,  broker  may  be  authorized  by  parol  to 

sell  or  lease  real  property 102 

79b.  In  certain  States  contracts  for  the  sale  of  lands  must  be  in  writing  102 

80.  Broker,  on  procuring  customer,  sending  telegram  to  owner,  tele- 

graph company  not  agent  as  to  notice 102 

81.  Telegram   must  reach  owner   before   he  signs  contract   with   an- 

other, or  it  is  too  late 102 


PART   II. 
OPTIONS,   SAI.es,  exchanges,   LEASES,   LOANS,  ETC. 


CHAPTER    I. 
82-111.     Options  on  real  estate 105-113 

CHAPTER   II. 
112-148.    Sales  of  real  estate 115-124 

CHAPTER    III. 
149-195.     Exchanges  of  real  estate 125-137 


TABLE   OF    CONTENTS.  XI 


CHAPTER    IV. 
SECTION  PAGE 

196-221.     Leases 138-145 


CHAPTER   V. 
222-257.     Loans  on  real  estate 146-158 

CHAPTER   VI. 

258-275.     Mortgages    159-166 

276-281.     Bonds   166-168 

282.     Building  material^,   building  contract,   builders'   loan 168 

283-289a.  Liens 168-170 


PART  m. 


BIGHTS,    DUTIES   AND    LIABILITIES  OF    PBINCIPAL 
AND  AGENT. 


CHAPTER    I. 


290.  Duty  or  obligation  of  an  agent  to  his  employer  and  others 173 

291.  Concealment  and  its  effect  upon  rights 180 

292.  Abandonment  of  employment,  and  of  contract  by  purchaser.  .  .  .  183 

293.  Alterations   made   in   written   instruments 185 

294.  Adverse    interests 185 

295.  Betrayal   of   trust 185 

296.  Collusion 186 


CHAPTER    II. 

297.  Deposits  188 

298.  Deceit   188 


Xll  TABLE   OF    CONTENTS. 

SECTION  PARE 

299.  Action   for   damages 190 

300.  Measure    of    damages 192 

301.  Clerks   196 

302.  Conduct   of   broker 197 


CHAPTER    III. 

303.  Debt  of  another 198 

304.  Discretion     199 

305.  Double    liability 199 

306.  Double  capacity 200 

307.  Contract  in  excess  of  authority  vested  in  agent 200 

307a.  Contract  of  broker  varying  from  instructions  will  not  be  enforced  201 
307b.  An  agent  who  enters  into  a  contract  without  authority,  or  who 

exceeds    same,    binds    himself 201 

307c.  Broker  not  entitled  to  commission  where  lots  were  sold  out  of 

order    201 

308.  Exoneration 201 

309.  Expenses    202 

310.  Employment  of  engineer 202 

311.  Fiduciary  relations 202 

312.  Failure  of  broker  to  report  offer 203 

313.  False   representatiooB 204 


CHAPTER    IV. 

314.  Fraud  of  broker  against  his  principal 206 

315.  Fraud  of  broker   against  third   persons ,215 

316.  Fraud  of  sub-agent 216 

317.  Fraud  of  principal  against  broker 217 

318.  Fraud  of   third   persons  against  broker 217 

319.  Fraud  of  principals  inter  se 218 

320.  Debatable  acts  of  broker  not  constituting  fraud 218 

321.  Points  of  practice  in  actions  for  fraud 221 


CHAPTER  V. 

322.  When  a  broker  is  and  when  not  liable  for  interest 224 

323.  Broker  obtaining  interest  hostile  to  principal 224 

324.  Improvement  of  property  beyond  authority  of  agent 224 


TABLE   OF    CONTENTS.  Xlll 

SECTION  PAGE 

325.  Agent  neglecting  to  place  insurance  liable 225 

326.  Illegal   purposes 225 

327.  Illegal  contract 225 

328.  Implied    powers 225 

329.  Joint  owner  condoning  fraud  liable 227 

330.  Agent  to  sell  has  no  power  to  grant  license  to  cut  timber 227 

331.  What  a  principal  must  do  to  escape  liability 227 

332.  Power  confirmingg  sales  confers  power  to  sell .•  227 

333.  Power  to  sell  land  acquired  afterward 228 

334.  Power  to  sell  land  not  conveyed 228 

335.  Power  to  sell  land  on  credit,  may  receive  payment 228 

336.  Power  to  sell  for  settlement,  when  not  violated 228 

337.  Power  to  sell  land,  not  power  to  lease 229 

337a.  Authority    of    agent    construed    to    authorize    contract    to    sell, 

but  not  to  convey  real  estate 229 

337b.  Power  to  sell  does  not  include  power  to  give  an  option 229 

338.  Agent  buying  liable  for  value  of  land  warrants 229 

339.  Authority  to  locate  and  survey,  no  power  to  sell 229 

340.  Power  to  sell  in  lots,  none  to  sell  otherwise 230 

341.  Broker  not  liable  for  mutual  mistake  as  to  power 230 

342.  Agent  to  sell  land  can  take  nothing  but  money 230 

343.  Broker  has  no  riglit  to  receive  Mexican  money 230 

344.  When  broker  need  not  tell  principal  what  land  sold  for 230 

345.  Agent  knowing  defect  in  title  cannot  acquire  adverse  to  principal  231 

346.  Broker  guilty  of  negligence  barred  commissions 231 

347.  Owner  liable  to  prospective  tenants  for  injury 231 

348.  Brokerage  contract  not   set   aside   for  fraud 231 

349.  Broker  liable  for  loss  through  negligence 232 

350.  Broker  departing  from   instructions  liable 232 

351.  Broker,  when  not  liable  for  loss  on  forged  note 232 

352.  Broker,  when  not  authorized  to  collect  note 232 

353.  Maker  may  pay  when  broker  has  note 233 

354.  Agent  has  no  power  to  receive  before  due 233 

355.  Agent  to  collect  interest,  no  power  to  collect  principal 233 

356.  Agent  doing  all  business  may  collect  note 233 

357.  Debtor  should  see  that  agent  has  security 234 

358.  Whei.  "jroker  entitled  only  to  nominal  damages 234 

359.  Notice  to  ugent 234 

360.  Broker  r  ust  give  notice  to  principal  on  finding  a  porchaser ....   234 

361.  When  notice  waived 234 

362.  When  principal  cannot  escape  liability  for  commissions 235 

363.  Agent  to  make  written,  cannot  make  oral  contract 235 

363a.  Broker  not  entitled  to  commissions  on  contract  not  conforming 

with    authority 235 

364.  Agent  under  oral  authority  cannot  bind  by  written  covenants. .   235 


IIV  TABLE   OF    CONTENTS. 


CHAPTER  VI. 
SECTION  PAGE 

365.  Postponement  by  purchaser,  broker  earns  commissions 236 

366.  Undisputed  possession  for  years,  raises  presumption  of  agent's 

authority  to  convey 237 

367.  Words  "phiced  in  hands  of"  do  not  give  possession 237 

368.  Agent  buying  and  taking  deed  to  himself,  holds  absolutely 237 

369. .  Principal    taking    land    in    lieu    of    cash    liable    to    broker    for 

commissions 237 

370.  Principal  paying  one  broker,  not  further  liable 237 

371.  Pool  to  divide  commissions  bars  recovery  by  broker 238 

372.  Agent  to  make  repairs,  not  permanent  improvements 238 

373.  Broker  cannot  retain  commissions  from  purchase  money 238 

374.  Vendor  refusing  to  sell  liable  for  commissions 239 

374a.  Owner  cannot,  by  refusing  to  convey,  avoid  liability  to  broker 

for   earned    commissions 239 

375.  When  refusing  to  sell  broker  not  entitled 239 

^76.     Other  property  taken  does  not  deprive  broker  of  commissions ....  240 

377.  Broker  refused  land  for  commissions  may  take  cash 240 

378.  Originally  agreeing  to  take,  on  refusal,  cannct  recover  in  money.  2'^0 

379.  Release  by  one  broker  left  other  entitled  to  half  of  remaining 

land    240 

380.  Release  of  vendee  does  not  deprive  broker  of  fee 241 


CHAPTER  VII. 

381.  Agent  to   collect  rent  not  authorized  to   employ  broker  to  sell 

land    242 

382.  Broker   required   to   refund   commissions   when  he   has  acted   in 

bad    faith 243 

383.  Receipt    by    broker,    signed    by    himself    as    agent,    binds    him 

individually    243 

384.  Where  agent  gives  receipt  in  name  of  principal  purchaser  must 

look   to   latter 243 

385.  Receipt  in  name  of  principal,  purchaser  may  recall  before  money 

is  paid  to  him 244 

386.  Creditor    authorized   to   collect   rent   cannot   pay   therefrom   his    • 

own    debt 244 

387.  Agent    to    collect    rent    mu,st    apply    the    same    as    directed    by 

principal 244 

388.  Broker   acting   in   interest   of   others,   not   entitled   to    share   in 

transaction  for  principal 244 

389.  Broker  purchasing  property  not  entitled  to  commissions  for  its 

sale 245 


TABLE   OF    CONTENTS.  XV 

SECTION  PAGE 

389a.  Agent  cannot  become  buyer  of  principal's  property 245 

389b.  When  employed  to  purchase  agent  cannot  sell  his  own  property 

to    principal 245 

389c.  Circumstances  under  which  agent  has  a  right  to  purchase  the 

property  for  himself 245 

390.  Broker  liable  for  fraud  of  sub-agent 246 

391.  Sub-agent  concealing  fact  deprives  broker  of  right  to  commissions  246 

392.  Sub-agent  exceeding  authority  bars  commissions 246 

392a.  Broker  selling  on  terms  varying  from  instructions 246 

392b.  Broker  departing  from  instructions  in  making  sales 246 

393.  Principal  not  liable  to  broker's  sub-agent 246 

394.  Broker  not  liable  for  poor  sale  by  sub-agent 247 


CHAPTER  VIII. 

395.  Sub-agent  violating  instructions 248 

396.  Sub-agent  entitled  to  share  of  one-half  commissions 249 

397.  Agreement  with   sub-agent  to  divide  fees  binding  on  producing 

customer 249 

398.  One  employing  agent  liable  for  commissions 249 

399.  Secretly  learning  price  and  sending  buyer,  broker  does  not  earn 

commissions    249 

400.  Secretly  representing  both  parties  bars  commissions 249 

401.  Vendor  acts  in  bad  faith  by  giving  commissions  to  purchaser's 

agent    250 

402.  Broker    required   to   exercise    the    skill    of    persons    engaged    in 

his    calling 250 

403.  Broker  may  be  responsible  for  sufficiency  of  securitj^ 250 

404.  Broker  must   account   to   principal   for  money   received,   statute 

of  frauds  no  protection 250 

405.  Broker   for   seller,   member  of   purchasing   syndicate,   bars   com- 

missions        251 

406.  Broker  giving  names  of  syndicate  before  formed,  owner  selling 

to  others  bars  commissions 251 

407.  Tenants  in  common  jointly  liable  for  commissions 251 

408.  Broker  selling  for  lower  price  than  authorized  bars  commissions  251 

409.  Terms  of  authorization  cannot  be  varied 252 

410.  Half-cash  complied  with  by  sale  for  all  cash 252 

410a.  Broker  authorized  to  sell  for  half-cash   and  remainder  on  time 

cannot  sell  for  all  cash 252 

411.  Contract  modified,  rights  depend  on  new 252 

412.  Failing  to  disclose  best  terms  bars  c«mmiscions 253 

412a.  Broker  understating  price  obtainable,  liable  to  principal  for  loss  253 


XVI  TABLE   OF    CONTENTS. 


CHAPTER  IX. 

SECTION  PACK 

413.  Unless  clothed  with  power  by  owner  no  one  can  transfer  title 

to  another's   land 254 

414.  Fraudulent  acts  of  broker  may  give  rise  to  an  action  of  tort.  .  .  .   254 
414a.  Proceedings  to  enforce  one  remedy  barred  any  other 255 

415.  Unauthorized    negotiations   of    broker    not   ratified   by    sale    by 

owner  to  customers 255 

4.16.     Broker    accepting   valuation    made    by    buyer,    principal    bound 

thereby    255 

416a.  Owner  bound  by   legitimate  effect  of  his  language  rather  than 

his  own  understanding  of  its  import 256 

417.  In  some  States  power  to  sell  and  convey  land  includes  power  to 

give  covenants  of  warranty 256 

418.  In  others  power  to  warrant  specially  conferred 256 

419.  Contract  for  sale  of  real  estate  may  be  sold  without  authority 

conferred   in   writing 257 

420.  When  duty  of  principal  to  collect  purchase  money  notes 25V 

420a.  Duty  to  collect  purchase  price  devolves  on  seller 257 

421.  Presumption  after  revocation  that  broker  acts  for  purchaser.  .  .  .   257 
421a.  One  receiving  inquiry  from  broker  as  to  price  of  land  may  infer 

he  is  acting  for  another 258 

422.  Authority  to  sell  for  fixed  sum  binding 258 

422a.  Authority  to  sell  for  specified  sum  is  for  cash  only 258 


PART  IV. 
COMMISSIONS  AND  COMPENSATION  OF  AGENTS. 


CHAPTER  I. 


423.  Broker  entitled  to  commissions  on  quantity 261 

423a.  Broker  entitled  to  agent's  commissions  and  not  limited  to  com- 
pensation on  lesser  sale  price 262 

424.  Broker  interfering  in  another's  transaction 262 

425.  Broker  agreeing  to  look  to  purchaser  for  commissions 262 

425a.  Broker  employed  to  purchase  not  entitled  to  commissions  from 

seller    263 


TABLE   OF    CONTENTS.  XVll 

SECTION  PAGE 

426.  Broker  not  entitled  on  sale  at  less  than  price 263 

427.  Broker  not  entitled  as  contract  not  a  lease 263 

428.  Immaterial  variance  in  description  does  not  deprive 264 

428a.  Wrong  description  insufficient  to  defeat  broker's  commissions .  .  265 

428b.  What  circumstances  fall  short  of  a  variance 265 

429.  Broker  procuring  loan  for  less  accepted  entitled 266 

430.  Broker  to  procure  loan  entitled  on  finding  lender 266 

431.  Broker  failing  to  report  finding  lender  not  entitled 266 

432.  Where  broker  negotiated  with  two,  sale  to  one  bars 266 

433.  Broker  not  entitled  where  sale  void  by  statute 267 

434.  Principal  refusing  to  appraise  broker  entitled 267 

435.  Purchaser  who  knew  length  of  lot  refusing,  bars 267 

436.  Where  vendor  repudiates  tender  not  necessary 268 

437.  Broker  unsuccessful  with  F.,  broker  selling  bars 268 

438.  Broker  not  entitled  where  party  does  not  show  good  faith 268 

439.  Unless  exclusive  broker  not  entitled  on  sale  by  another  agent  269 

440.  Broker  entitled  on  sale  by  owners  to  proportionate  commissions 

on  share  of  two  tenants  in  common 269 


CHAPTER  II. 

441.  Broker  preventing  competitive  bidding  not  entitled  to  commis- 

sions     270 

442.  Brokers  cannot  charge  commissions  against  beneficiary. .  .  ., 270 

443.  Volunteers   270 

444.  Interference  by  breaking   into   negotiations   started  by  another 

agent    271 

445.  The  first  broker  who  succeeds  is  entitled  to  the  commission.  .  .  .   273 

446.  Broker  who  was  the  procuring  cause  of  the  sale  is  entitled  to 

compensation    275 

CHAPTER  III. 

447.  Continuity  broken,  and  its  efTect  upon  the  rights  of  the  broker.  .   282 

448.  Sequence  broken,  and  its  effect  upon  the  broker's  right  to  com- 

missions       284 

449.  Consummation   of   contract 285 

450.  Introduction  of  prospective  purchaser 287 

CHAPTER  IV. 

451.  Effect  of  representations  as  to  the  dimensions  of  the  property 

offered    289 

452.  Purchaser  acting  for  another 291 

453.  Apportionment    291 

454.  Defeat  of  broker's  right  to  commissions 291 


XVlll  TABLE  OF   CONTENTS. 


CHAPTER  V. 

SECTIOX  PAGE 

455.     Deals 300 

45(5.     Excess  in  price  as  compensation 300 

457.  Failure  of  broker  to  sell 302 

458.  Failure  to  consummate  contract  of  sales 302 

459.  Failure  of  sale  by  defect  in  title 304 

4G0.     Failure  of  purchaser  to  carry  out  contract 305 

461.  Failure  of  consideration 305 

462.  Forfeitures 306 


CHAPTER  VI. 

463.  Financial  conditions 309 

464.  Financial  responsibility  of  purdliaser 310 

465.  Finding  a  purchaser 313 

466.  Gratuities    314 

467.  Goods  exchanged  for  land 315 

468.  Broker  entitled  to  commissions  in  stock  of  Insurance  Company.  .  315 

469.  Broker  entitled  to  commissions  though  sale  enjoined 315 

470.  Broker  not  entitled  to  full  commissions  till  price  paid 315 

471.  Broker  not  informing  principal  of  customer  defeats  commissions.  315 

472.  Knowledge  by  broker  that  principal  owns  but  part  of  property 

does  not  defeat  commissions 316 

473.  Litigation  by  third  persons  does  not  defeat  commissions 316 

474.  Methods  of  earning  commissions  by  broker 316 

474a.  Broker   employed   to    sell    real   estate    not    required    to    prepare 

contract  of  purchase 316 

475.  Broker  as  middleman  may  recover  commissions  from  each  party.   317 

476.  Sale  of  mine  not  within  description  defeats  commissions 317 

477.  Modification   not  assented  to   by   broker,   does   not   defeat   com- 

missions       318 

478.  Modification  in  broker's  presence  did  not  affect : 318 

479.  Modification    by    performing    other    services    modifies    right    to 

commissions    318 

480.  Broker  agreeing  to  take  stock,  cannot  recover  in  money 319 

481.  Net  price  to  owner,  broker  does  not  take  excess 319 

482.  Net    price    to    owner,    broker    selling    thereat    not    entitled    to 

any  commissions -. 319 

CHAPTER  VII. 

483.  Net  price  to  owner  and  note  for  excess  to  broker,  on  vendor's 

refusal  broker  entitled  to  commissions 322 

484.  Net  price,  broker  entitled  to  excess  from  first  payment  made. . . .   322 


TABLE   OF    CONTENTS.  XIX 

SECTION  PAGE 

485.  Where  owner  changed  contract  from   gross   to  net  price  liable 

to  broker  for  commissions 322 

486.  Broker's  commissions  computed  on  actual  sum  received 322 

487.  Failing  to  disclose  that  nominal  is  not  the  real  purchaser  does 

not  defeat  commissions 323 

487a.  Liability    to    broker    for    commissions    depends    upon    the    real 

parties  to  the  bargain 323 

488.  Broker  entitled  to  commissions  where  non-pei'formance  not  caused 

by  his  fault 323 

489.  Where  neither  principal  nor  broker  effecting  sale  had  notice  of 

other    broker's    negotiations    he    is    not    entitled    to    com- 
missions        323 

490.  Principal  selling  before  expiration  of  time  given  broker,  without 

notice,  broker  entitled  to  commissions 324 

491.  Reporting  offer  of  $16,000   instead  of  $15,000   did   not  deprive 

broker  of  commissions 324 

492.  Oral  contract  to  sell  land,  followed  by  written  contract,  entitled 

broker  to  commissions 324 

493.  Broker   entitled    to   commissions    for    sale   of   four    houses,    not 

entitled  to  proportionate  amount  for  one 325 

494.  Broker  entitled  to  commissions  for  sale  of  lots  not  entitled  to 

same  rate  for  large  body  of  land 325 

495.  Broker  promised  commission  for  selling  part,  entitled  to   same 

rate  for  selling  all 325 

496.  Broker  who  failed  to  sell   all,  entitled   to  commissions  on  sale 

of  part  by  owner  to  customer 325 

497.  Share   of    profits   on    sale    through    sub-agent    not   defeated   by 

unfair  dealing  of  latter 326 

498.  Commissions  payable  on  sale,  and  not  on  collection  of  deferred 

payments 326 

499.  Commissions   are   due   when    contract   is   made   with    purchaser 

produced  by   broker 326 

499a.  Broker's  commissions  are  earned  when  contract  of  exchange  is 

executed     326 

499b.  Commissions  not  due  until  actual  transfer  made 327 


CHAPTER  VIIT. 

500.  Broker  entitled  to  commissions  on  actual  payment  by  default- 
ing   vendee 329 

500a.  Broker    limited    to    commissions    on    $1,000    although    property 

later  sold  for  $12.500 329 

601.     Broker's  right  to  commissions  not  defeated  beccause  to  be  paid 

from  purciiase  money 330 


XX  TABLE   OF    CONTENTS. 

SECTION  .  PACKS 

502.  Principal  liable  for  commissions  on  sale  to  customer  at  lower 

price,  unless  fixed  price  required 330 

503.  Where   principal    agreed    to    pay    commissions    upon    receipt   of 

price,  broker  not  entitled  before 331 

504.  Commissions  are  usually  payable  upon  completion  of  the  trans- 

action        331 

505.  Broker  entitled  to  commissions  although  purchaser   pays  more 

than  he  authorized  him  to  oflFer 332 

506.  Where   purchaser   defaulted,  broker  entitled   to  commissions  on 

actual   payments 332 

507.  Cases  where   plaintiff  was  held  not  to  be  the   procuring  cause 

of  sale,  and  not  entitled  to  commissions 332 

508.  W^here    sale    frustrated    through    failure    to    partition,    broker 

entitled  to  commissions 332 

509.  Partial    performance    entitled    broker    to    recover    neither    on 

contract  nor  on  a  quantum  meruit 3.33 

510.  Agent    in    charge    of    real    estate    securing    responsible    tenant, 

entitled  to  recover  on  a  quantum  meruit 333 

511.  On    principal    selling,    broker    could    recover   for   services   on    a 

quantum   meruit 333 

512.  Principal    selling   for    less   than    agreed    price,    broker    entitled 

to  recover  on  a  quantum  meruit 334 

513.  In  the  absence  of  an  express  contract  broker  procuring  a  pur- 

chaser may  recover  on  a  quantum  meruit ?.34 

513a.  In  absence  of  fixed  rate  measure  of  broker's  compensation  the 

value  of  the  service  rendered 334 

514.  Demand    by    broker    for    $10,000    to    release    lien    defeated    his 

right  to  commissions 335 

515.  First   broker    held   to    have    right   to    commissions    by    second's 

relinquishment 335 

515a.  Waiver  of  variance  in  contract  by  acquiescence 335 

516.  If  authority  to  secure  a  purchaser  is  revocable  broker  securing 

after  barred  commissions 336 

517.  If  the  customer  reserves  the  right  to  withdraw  from  transaction 

if  title  bad,  if  exercised,  bars  commissions 336 

518.  Unless  exclusive,   rival   broker   not   entitled   to   commissions   on 

sale  by  the  other 336 

519.  Broker  and  sub-agent  stand  in  similar  relations  as  to  compensa- 

tion as  do  principal  and  agent 336 

520.  Sub-agent  entitled  to  share  in  commissions  though  he  violated 

instructions     337 

520a.  Broker  liable   to  sub-agent  though  property  on  sale  found  not 

to  belong  to  vendor 337 


TABLE  OF   CONTENTS.  XXI 


CHAPTER  IX. 
SECTION  PAGE 

621.     Sub-agent  entitled  to  commissions  for  sale  made  after  revoca- 
tion of  authority 339 

522.     Sub-agent  denied  recovery  of  unlawful  commissions 339 

623.     Typical  cases  in  which  the  sub-agent  was  held  entitled  to  recover 

share  of  commissions 339 

524.  Sub-agent  not  entitled  to  recover  of  his  principal  for  sale  made 

at  reduced  price 340 

525.  Sub-agent   entitled    to   commissions,    though    he   failed    to    give 

the  name  of  purchaser 340 

626.     Broker   selling   to   railroad   instead  of  to   syndicate   entitled   to 

commissions    340 

527.  Broker   entitled   to    commissions   though    sale   other    than    that 

contemplated    * 341 

528.  Broker's    right    to    commissions    not    affected    by    owner's    sup- 

positions        341 

629.     Broker's  erroneous  advice  as  to  liability  for  sewer-tax  defeated 

right  to  commissions 341 

530.     Broker  failing  to  name  purchaser  in  telegram  to  principal  does 

not  defeat  commissions 341 

631.  Where  vendor  sought  to  vary  terms,  and  purchaser  refused  to 

take,  broker  entitled  to  commissions 342 

632.  Broker   entitled   to    commissions    on   bringing   parties   together, 

though  they  contract  on  different  terms 342 

633.  On  making  a  sale  defect  in   the  title   does  not  deprive  broker 

of  right  to  commissions 343 

534.  Where  customer  exercises  right  to  withdraw  if  title   defective, 

broker  barred  commissions 344 

535.  W^here  broker   is  to   have   part  of  the  profits  on   the   sale,  not 

entitled  where  it  fails  by  defect  in  title 344 

636.     Payment  of  commissions  to  broker  may  depend  on  the  transfer 

of    title 344- 

537.     Broker  not  entitled  to  commissions  where  customer  refused  to 
complete  purchase  on  account  of  a  supposed  defect  in  Ihe 

title    345 

638.     Whether  principal  or  another  holds  the  title,  broker  on  produc- 
ing buyer  entitled  to  commissions 345 

539.  Where  sale   defeated  by  want  of  title,  which   he  knew,  broker 

barred    commissions 345 

540.  Ignorance  of  title  by  holder  of  record  title  did  not  defeat  broker's 

right  to  commissions 345 

641.     Where  broker  produced   purchaser  and  sale  failed  by  a  dispv.te 

over  taxes,  broker  barred  commissions 346 

542.     After   memorandum   contract   signed,   and   purchaser   refused    'o 

pay  water-tax,  broker  entitled  to  commissions 346 


-rxn  TABLE  OF   CONTENTS. 

SECTION  PAGE 

543.     Unavailing   efforts   to    perform    do   not   entitle   broker   to    com- 
missions        346. 

644.  To  entitle   broker   to   commissions   for   a    sale   his   negotiations 

must  be  uninterrupted 347 

645.  Undisclosed  agreement  to  divide  commissions  with  purchaser  does 

not  bar  broker's  right  thereto 347 


CHAPTER  X. 

546.  Broker  not  entitled  to  commisfiions  until  he  has  performed  his 

undertaking    348 

546a.  In  some  States  reasonable  compensations  may  be  recovered  for 

partial  performance  of  an  entire  contract 349 

547.  Broker  not  entitled  to  commissions  for  procuring  contract  subject 

to  unauthorized  condition 349 

547a.  Broker  entitled  to  commission  on  alternative  contract,  which  did 

not  bind  the  buyer,  even  although  he  approved  the  title.  .  .   349 

548.  Broker   obtaining   purchaser   for   vested   remainder   on   different 

terms   barred  commissions 349 

549.  Broker   does   not   earn   commissions    if   contract   to    be   void   if 

first  payment  fails 350 

550.  Variance  as  to  name  of  ranch   sold  did  not  deprive  broker  of 

right  to   recover  commissions 350 

551.  Broker  not  entitled  to  commissions  for  contract  too  vague  for 

enforcement,  on  failure  of  customer  to  take 350 

552.  Withdrawal  of  land  from   sale  entitled  broker,  under  contract, 

to   commissions 351 

553.  Withdrawal  and  sale  by  owner  in  good  faith  to  customer  bars 

broker's  commissions 35 1 

554.  Principal  paying  commissions  to  broker  before  purchaser  with- 

draws cannot  recover  same 351 

555.  Broker  entitled  to  commissions  where  sale  failed  because  rights 

of  two  heirs  were  not  acquired 352 

556.  Where  purchaser  is  in  default,  broker  not  entitled  to  commissions  352 

557.  When  commissions  are  earned  by  broker 352 

658.     When  commissions  are  not  earned  by  broker 363 


TABLE   or    CONTENTS.  XXUi 


PART   V. 


PLEADINGS,  PRACTICE  AND  JUDICIAL  CONSTRUCTIONS 
AND  INTERPRETATIONS. 


CHAPTER  I. 

SECTION  PAGE 

550.  Doctrine  of  public  policy 373 

560.  Acquiescence  and  waiver,  and  effect  upon  broker's  rights 375 

5G1.  Advertising  and  advertisements 379 

562.  Accord  and  satisfaction 380 

56S.  Breach  of  contract 380 

564.  Correspondence   382 

565.  Advances    383 

566.  The   borrower 383 

567.  Acceptances 384 

568.  Conformity    385 

569.  Costs   385 

570.  Conditions  precedent  to  right  to  commissions 386 


CHAPTER  II. 

571.  Courts 389 

572.  Equity    389 

573.  Exceptions   392 

574.  Forgery 392 

575.  Loan  payable  in  gold 393 

576.  Licenses    393 

577.  Limitations  and  restrictions 396 

578.  Broker  acting  as  a  mere  middleman 396 

579.  Unless  mistake  be  pleaded  and  proved  each  purchaser  bound  for 

the  whole  commission 397 

580.  Immediate  notice  means  in  a  reasonable  time 398 

58L     Principal  may  remain  neutral  as  to  brokers'  claims 398 

582.     Proposition   inconsistent  with   negative  to   prove 399 

683.     Parol  contract  of  agent  binds  unnamed  principal 399 

584.  Broker  to  share  in  profits  for  sales  not  partners 399 

585.  To  pay  commission  on  withdrawing  land  strictly  construed 400 

586.  In   trying   to   effect   a   sale   of   real   estate,   party   may   extrav- 

agantly extol 400 


XXIV  TABLE   OF    CONTENTS. 


CHAPTER  111. 

SECTION  PAGE 

587.     Qunntum    meruit 402 

688.     Broker  has  right  of  action  against  defaulting  purchaser  for  lost 

commissions    404 

588a.  Broker's  right  to  recover  from  vendee  price  paid  for   property 

purchased  for  him 404 

589.  No   right    in   equity    arises   out   of    a   verbal    contract   for    the 

sale  of  land 405 

590.  Statute   of   frauds 405 

591.  Real  estate   agent  not   liable  for  failure  to   remove  snow  from 

sidewalk    408 

592.  Seals,  and  the  necessity  for  their  use 408 

593.  When  tender  of  written  agreement  by  purchaser  not  necessary.  .   409 

594.  Employment  of  broker  to  meas&re  land  does  not  sustain  claim 

of  broker  for  selling 409 

595.  Wliere  title  taken  by  broker  to  land  purchased  principal  may 

tender  amount  and  demand  deed 409 

596.  When  not  necessary  for  broker  to  show  vendor  had  a  clear  title.   410 

597.  Contract  of  sale  requiring  owner  to  furnish  abstract  of  title  not 

within  authority  of  broker 410 

598.  A  custom  or  usage  must  be  general  before  a  court  will  declare 

its  existence  as  a  matter  of  law 410 

599.  Where  .a  usage  is  proved,  the  law  raises  a  presumption  that  the 

agent  contracted  with  reference  thereto 410 

600.  Unconstitutionality    of    statute    requiring    contract,    employing 

broker  to  be  in  writing 411 

601.  Undisclosed   principal 411 

602.  Where  broker  must  be  authorized  in  writing,  contract  without 

unenforceable   412 

602a.  Manner  in  which  contracts  with  broker  to  sell  real  estate  should 

be    construed 412 

60.3.     Broker  cannot  recover  commissions  where  contract  unenforceable  412 

604.  Contract  by  unlicensed  broker  not  absolutely  void 413 

605.  Agreement  to  hire  auctioneer  to  sell  land  need  not  be  in  writing.   413 

606.  Memoranda    held    insufficient   to   meet  the   requirements   of   the 

statute  of   frauds 413 

607.  Statute   of   limitations 414 

608.  Rival   brokers 415 

609.  If  purchaser  willing  to  perform,  statute  of  frauds  not  available 

to  defeat  broker's  commissions 415 

610.  Reasonable  price  inferred  by  law 415 

611.  What  is  a  reasonable  time 415 

612.  Broker's  employment  continues  for  reasonable  time 416 

613.  Contract  to  pay  $1,000,000  continued  for  a  reasonable  time 416 


TABLE   OF    CONTE>*«s.  XXV 

SECTION  PAGE 

614.  When  reasonable   time   immaterial 417 

615.  In  absence  of  express  agreement,   reasonable   value  of   services 

recoverable    417 

616.  Reasonable  compensation 417 

617.  Not   necessary    for   broker   to   put   defendant   in    default,    before 

suing  for  compensation 417 

618.  Ratification  not  shown  by  acquiescence  without  knowledge 418 

618a.  Reply  of  owner  that  did  not  constitute  a  ratification 418 

619.  Ratification  by  acceptance  of  offer  to  broker 418 

620.  Ratification  cures  any  defect  in  agent's  appointment 418 

620a.  Sufficient  allegation  of  ratification 419 

621.  Ratification  by  principal  executing  contract 419 

622.  Ratification  by  acceptance  of  proceeds 419 

623.  To  constitute  ratification  of  act  of  attorney  knowledge  on  part 

of  principal  immaterial 420 

624.  It  is  an  essential  prerequisite  to  ratification  that  principal  had 

knowledge  of  unauthorized  contract 420 

625.  Tender  not  necessary  to  entitle  broker  to  recover  on  principal 

refusing  purchaser 420 


CHAPTER  IV. 

626.  Custom  or  usage 422 

626a.  Custom  insufficient  to  supply  lack  of  employment  as  broker 423 

627.  Defendant  cannot  object  where  evidence  shows  sale  for  less  than 

broker    claims 4?3 

628.  Presumptions    424 

629.  Assumpsit    425 

630.  Actions  between  principals  and  agents 425 

631.  Common   counts 428 

632.  Petition,  ultimate  facts  must  be  pleaded 429 

632a.  Petition  in  action  to  recover  commissions 429 

632b.  When  right  of  action  for  commissions  accrues  to  broker 429 

633.  Petition  alleging  failure  to  exchange  defective 430 

634.  Petition  alleging  sales  to  persons  defective 430 

635.  Petition  alleging  deed  of  trust  not  defective 430 

635a.  Complaint   not   objectionable   for   failing  to   show   that   plaintifl" 

found   a    ourchaser   on   terms   offered 431 

636.  Petition  that  broker  have  over  certain  sum  when  not  breached.  .    431 

637.  Petition  on  express  contract  may  recover  when 432 

637a.  Necessarv  allegations  and  proof  to  enable  broker  to  recover  com- 
missions for  effecting  a  sale  or  exchange 432 

637b.  Petifinn  sufficient! v  setting  out  contract  with  firm  of  real  estate 

brokers  to  sell  land 432 

638.  Cannot  recover  on  proof  of  substituted  contract 432 


XXVI  TABLE   OF    CONTENTS, 

8KCTI0N  PAGE 

t)3!).     Failing  to  prove  agreed  may  recover  reasonable. 433 

G40.     Petition  good  against   demurrer 433 

640a.  Petition  for  commissions  not   demurrable  for   failing  to   allege 

customer  ready,  able  and  willing  to  purchase 433 

641.  When  agent  may  recover  without  showing  performance 433 

642.  To  recover  money  broker  refuses  to  pay,  need  not  allege  he  had 

authority  to  collect 434 

64^.  Broker  not  liable  to  principal  for  money  refunded  on  rejected 

contract 434 

642b.  Broker  receiving  money  for  his  principal  not  liable  to  repay  on 

suit  by  party  entitled  thereto 434 

642c.  Circumstances   under  which   party   entitled   to   money   may   Bue 

agent  for  its  recovery 435 

643.  Alleging  sale  by  owner  ending  contract  demurrable 435 

644.  Alleging  notice  of  double  employment  not  demurrable. . .  ^. 436 

645.  Bringing  parties  into  touch  insufficient 436 

646.  Alleging  defendant  accepted  services  when  good 436 

647.  Failing  to  show  written  contract,  rest  immaterial 437 

648.  Incomplete  copies  of  unsigned  letters  demurrable 437 

049.     Petition  for  commissions  on  passing  of  title  defective 437 

649a.  Petition  which  failed  to  state  a  cause  of  action 437 

650.  For  procuring  tenant  who  purchased  in  not  alleging  employment 

to   sell 438 

651.  Agreement  to  pay  as  commission  all  over  enough 438 

652.  Petition  for  commissions  for  selling  bonds  defective 438 

653.  Out  of  last  cash  payment  must  aver  such  payment 439 

654.  Not  alleging  agreement  stated  made  defective 439 

655.  Asking  judgment  for  excess  demurrable .  439 

650.     Petition  sufficient  without  alleging  sale  for  the  purpose  of  de- 
frauding plaintiff 440 

656a.  Petition  not  defective  as  alleging  contract  in  violation  of  broker's 

duty   440 


CHAPTER  V. 

657.  Interpleader,  when  allowed 441 

658.  Interpleader,  when  not  entitled  thereto 442 

659.  Demurrer   lies   to   petition   against   broker   for   faihxre   of   title, 

when     443 

660.  Demurrer  lies  to  allegation  that  defendant  neglected  to  collect 

rents 443 

661.  Demuri-er   lies   to  petition  where  only   partial   copies  of  letters 

constituting  contract  are  given 443 

662.  Demurrer   sustained  where   plaintiff  sought  to   recover  for   loss 

of  commissions  from  opposite  party 443 


TABLE   OF    CONTENTS.  XXVU 

SECTION  PAGE 

663.  Demurrer  to  answer  lies  for  not  showing  modification  of  writ- 

ten contract 444 

664.  In  Nebraska,  demurrer  lies  to  petition  not  showing  agent's  ap- 

pointment was  in  writing 444 

665.  Demurrer  held  improperly  sustained  in  action  to  recover  commis- 

sions paid  recreant  agent 444 

666.  Motion  to  dismiss  held  properly  denied 445 

667.  Amendment  to  set  up  unconscionable  demand  refused 445 


CHAPTER  VI. 

668.  Amendment  proper   to   allow  general  denial  where   answer  set 

up  statute  of  frauds 446 

669.  Amendment    allowing   correction'  of    written   contract   does    not 

cause  a  departure 446 

670.  Amendment,  when  error  to   refuse 447 

671.  Amendinent,  error  to  allow  to  allege  exercise  of  option  and  com- 

pletion of  sale 447 

672.  Amendment  to  answer  held  improper  and  misleading 447 

673.  Amendment   of   complaint,    at   trial,   in   furtherance   of   justice, 

held  proper 448 

674.  Amendment    properly    allowed     plaintiff    to    claim     return    of 

commissions  for  fraud 448 


CHAPTER  VII. 
675-703.    Defenses  449-458 

CHAPTER  VIII. 

704*-704a.  What  are  not  departures 459 

705-728c.  Examples  on  the  question  of  burden  of  proof 460-467 

CHAPTER  IX. 
729-761C.  Evidence— Admissible    468-480 

CHAPTER  X. 
762-783C.  Evidence— Inadmissible 481-488 


XXVlll  TABLE   OF    CONTENTS. 

CHAPTER  XI. 
SECTION  PAGE 

784-809b.  Evidence — Immaterial   and    irrelevant 489-497 

CHAPTER  XII. 
810-838.     Evidence   in  general 498-508 

CHAPTER  XIII. 
839-862a.  Estoppels  609-515 

CHAPTER  XrV. 

863.  Dismissal,  when  proper 517 

864.  Dismissal,  when  error 517 

865.  Non-suit    517 

866.  Prima  facie  case 517 

867-873.     Issues    518-520 

874-887.     Variances    521-526 

CHAPTER  XV. 
888-929b.  Questions  to  be  determined  by  the  jury 527-542 

CHAPTER  XVI. 
930-1047a.  Instructions   to   juries 543-590 

CHAPTER   XVII. 

1048-1053b.  Findings  by  the  court 592-595 

1054-1064.     Verdicts    595-599 

1065-1071a.  Judgments  599-602 

CHAPTER  XVIII. 

1072-1078e.  Error    603-608 

1079-1131.     Judicial  constructions  and  interpretations 608-626 


TABLE  OF  CASES. 


[References  are   to   sections.] 


Abbey   v.    Chase    (6   Cush.    [Mass.] 

54),   18. 
Abbott  V.  Hunt   ( 129  N.  C.  403,  40 

S.  E.   119),  15,  L2. 
Abel  V.  Disbrow    (44  N.  Y.  S.  573, 

15  A.  D.  536),  61,  290. 
Abraham    v.    Burstein    (17'8    N.    Y. 

586,  70  N.  E.   1094),  1054. 
Abraham  v.  Goldberg    (25  N.  Y.  S. 

1113,  6  Misc.  43),  21. 
Ackenburg  v.  McCool  ( 36  Ind.  473 ) , 

321. 
Ackermann  v.  Bryan   (33  Neb.  515, 

55  N.  W.  435),  632a,  640. 
Adams  v.  Decker   (34  111.  App.  17), 

446,  532. 
Adams  v.  Grady    ( [N.  J.  Sup.  '09  J 

72  A.  55),  590. 
Adams    v.    McLaughlin     ( 159    Ind. 

23,  64  N.   E.   462),  632a,   743, 

807. 
Adams    v.    Power    (52    Miss.    828), 

24. 
Addison   v.    Wannamaker    ( ISo    Pa. 

St.  536,  39  A.  1111),  12,  J7. 
Aigler   v.   Carpenter   P.   L.  Co.    (51 

Kan.   718,   33   P.   593),   85,   86. 
Akin  V.  Allen   (14  Manitoba,  549), 

482. 
Aikin  v.  Poffenberger    ( [Tex.  C.   A. 

'09]    116   S.  W.   615),  559. 
Alabama    Ivoan    Co.    v.    Deans    (94 

Ala.  377,   11   S.   17),  454. 
Albany  Land  Co.  v.  Rickel  ( 162  Ind. 

222,  70  X.  E.  158),  24,  28,  37, 

563,    1092. 


Albritton  V.  First  Nat.  Bk.   ([Tex. 

C.   A.   '05]    38  Tex.  C.   A.  614, 

m  S.  W.  646),  508. 
Alden  v.  Earle  ( 56  N.  Y.  Super.  Ct. 

366,  4  N.  Y.   S.  548),  22,  290, 

558. 
Alden  v.  Earle    (121   N.  Y.  688,  24 

N.  E.  705,  affirming  4  N.  Y.  S. 

548),   447. 
Alden  v.  Robinson     98  N.  Y.  S.  675-) , 

971. 
Alderson    v.    Houston    ( 154   Cal.    1, 

96  P.  884),  563,   1085. 
Aldis    V.    Schleicher     (9    Cal.    App. 

372,   99   P.   526),   590. 
Alemany  v.  Daly   (36  Cal.  90),  26, 

304,  328. 
Alexander  v.  Breeion    ( 14  B.  Mon. 

[Ky.]    125),  432. 
Alexander  v.  N.  W.  Chr.  Univ.   (57 

Ind.  466),  51,  290. 
Alexander    v.    Wakefield    ( [Tex.    (\ 

A.  '02]  69  S.  W.  77),  527,  5.57. 

615,   1005,  1076. 
Alger   V.   Anderson    (78    Fed.    729), 

36,  99,  329,  856. 
Allen  V.  James  (7  Daly  [N.  Y.]  13), 

557. 
Alpern  v.  Klein   (76  N.  J.  L.  53,  68 

A.  799 ) .  592. 
Alt  V.    Doscher    (92   N.   Y.   S.   439, 

102  A.  D.  344),  464. 
Alt  V.  Doscher    (186  N.  Y.  566,   79 

N.  E.  1100),  694. 
Alvord  V.  Cook   (174  Mass.   120,  54 

N.  E.  499),  371. 
Alwootl   V.  Mansfield    (59   111.  496), 

708. 

xxix 


zzx 


TABLE  OF   CASES. 


[References  are  to  sections.! 


Amato  V.  Dreyfus   ( [Tex.  C.  A.  9«] 

34  S.  W.  450),  576. 
Ames   V.   Pt.   Huron   Log,   etc.    Co. 

(11  Mich.  139),  290. 
Ames    V.    Lament    (107    Wis.    531, 

83  N.  VV.  780),  482,  636. 
Ames  V.  MeXally    (26  N.  Y.  S.  71, 

6  Miic.  93 ) ",  890. 
Anderson  v.  Bradford  ( 102  Mo.  App. 

433,  76  S.  W.  726),  6,  942. 
Anderson  v.  Cox   (16  Neb.  10,  20  N. 

W.  10),  557,  561. 
Anderson  v.   Creston  Land  Co.    (96 

Va.  257    31  S.  E.  82),  871a. 
Anderson    v.    Dvvyer    (63    X.   Y.    S. 

201,  30  Misc.  793),  1093.      • 
Anderson    v.   Johnson    (112    N.    W. 

139  [X.  D.  Sup.  '07] ),  822,  888. 
Anderson  v.  Lewis   (64  W.  Va.  297, 

61  S.  E.  160),  64,  761. 
Anderson  v.  Olson  (  [Minn.  Sup.  10] 

124  X.  VV.  3),  557. 
Anderson  v.   Smythe    ( 1   Colo.  App. 

253,  28  P    478),   17,  446. 
Angle  V.  Miss.,  etc.,  R.  C.   (9  Iowa, 

487),  502. 
Angel  V.  Van  Schinck  ( 56  Hun,  247, 

9  X.  Y.  S.  568 ) ,  676. 
Annabil     v.      Traverse     Land     Co. 

([Minn.    Sup.   '09]    121   X.    W. 

233),   12,  557,  679. 
Antisdel  v.  Canfield  <119  Mich.  229, 

77  X.  W.  944),  22,  482. 
Appleton  V.  Binks  (5  East  R.  [Eng.] 

148),  58. 
Arents  v.  Casselman  ( [Va.  Sup.  10] 

66  S.  E.  820),  919. 
Armes  v.  Cameron   (19  D.  C.  435), 

61,  141,  444,  445,  502. 
Armstrong  v.  Cleveland   (32  Tex.  C. 

A.  482,  74  S.  W.  789),  637. 
Armstrong     v.     Elliott     (29     Mich. 

485),   389a. 
Armstrong  v.  Lowe  ( 76  Cal.  616,  18 

P.  758),  18. 
Armstrong  v.  O'Brien   (83  Tex.  635, 

19   S.   W.   268),  314,  371,   427, 

632. 
Armstrong    v.    Pt.    Edwards     ( 159 

X.    Y.    315,    53    X.    E.    1116), 

328,  466,  892,  896. 


.\rmstrong  v.  Wann  (29  Minn.  126, 

12  X.  W.  345),  17,  432,  446. 
Arnold  v.  Xat.   Bk.  Waupaca    (126 

Wis.  362,   105  X.  W.  828),  50, 

82,  328,  557,  567. 
Arnold  v.  Teal   ( 182  Mass.  1,  64  N. 

E.  413),  836,  1053. 
Arnold   v.   Woolacott    (4   Cal.   App. 

500,  f*."  P.  504),  214. 
Arnot  V.  Biscoe  ( 1  Ves.  95,  27  Eng. 

Reprint,  914),  315. 
Arrington  v.  Cary   (5  Baxt.  [Tenn.] 

609),  449,  450. 
Arthur  v.  Porter   ([Tex.  C.  A.  '09] 

116  S.  W.   127),  701,  560,  314, 

534. 
Arthur    v.    Sylvester    (105    Pa.    St. 

233),  285. 
Ashby  V.  Holmes  ( 68  Mo.  App.  23 ) , 

616,  866. 
Ashfield  V.  Case    (87  X.  Y.  S.  649, 

93  A.  D.  452 ) ,  224,  449. 
Aspinwall   v.    Torrance    ( 1    Lansing 

[X.  Y.]  381),  18. 
Atkinson   v.   Pack    (114   X.   E.   597, 

19  S.  E.  628),  299,  300. 
Atterbury  v.  Hopkins  ( 122  Mo.  App. 

172,^99  S.  W.  11),  698. 
Attix  v.  Pelan    (5  Iowa,  336),  533. 
Atwater  v.  Lockwood  ( 39  Conn.  45 ) , 

17,  24. 
Atwator    v.    Wilson    (34    X\    Y.    S. 

'   153,  13  Misc.  117),  446. 
Auten  v.  Jacobus  (47  X.  Y.  S.  1119, 

21  Misc.  632),  688. 


Bab  V.  Hirshbein  (11  X.  Y.  S.  776), 

25. 
Bab  V.  Hirshbein  (12  X.  Y.  S.  730), 

637. 
Babbitt  v.    Fidelity   Trust   Co.    (70 

X.  J.  Eq.  651,"  66  A.  1076).  35. 
Eabcock  v.  De  Mott  (160  Fed.  882), 

314. 
Babcock    v.    Merrit    ( 1    Colo.    App. 

84,   27    P.    882),    17,   446,   482. 
rJabson    v.    Cox    (32    App.    [D.   C] 

542),  299,  335. 


TABLE   OF    CASES. 


XXXI 


[References  are  to  sections.] 


Bacon  v.  Davis   ( [Cal.  App.  'OS]  98 

P.  71),  18,  26,  328h,  1111. 
Bacon  v.  Rupert   (31)  Minn.  512,  40 

^^.  W.  832),  222. 
Bacon's  Abr.  27. 
Baer  v.  Koch    (21   X.  Y.  S.   974,  2 

Misc.  334),  513,615. 
Bagnole  v.  Madden  ( 76  X.  J.  L.  2g5, 

C9  A.  967),  19,  21. 
Bailey  v.   Carleton    (43  Colo.  4,  95 

P.  542),  543,  759,  1041. 
Bailey   v.  Chapman,    (41   Mo.   App. 

536),  454. 
Bailey  v.  Galbreath  ( 100  Tenn.  599, 

47  iS.  W.  84),  351,  574. 
Bailey   v.   Gardner    (6    Abb.    X.    C. 

[X.  Y.]    147),  377,   378. 
Bailey  v.  Moorhead    ( 122  Mo.  App. 

268,  99  G.  W.  39),  22,  56. 
Bailey  v.   Smith    (103   Ala.   641,   15 

S.  900),  22,  290,  558. 
Bain  v.  Brown  (56  X.  Y.  285),  321. 
Baird  v.  Glecker    (11   S.  D.  233,  76 

X.  W.  931),  1002. 
Baird  v.  Loescher   (9  Cal.  App.  65, 

98  P.  49),  17,  590. 
Baker  v.  Brown    (82  Cal.  64,  22  P. 

879),  315. 
Baker  v.  Byrne  (10  Aliss.  193),  24. 
Baker   v.   Gillen    ( [Xeb.  Sup.    '03], 

94  X.  W.  615),  600. 
Baker    v.    Murphy     (105    111.    App. 

151),  61,  502. 
Baker  v.  Thomas   (31  X.  Y.  S.  993, 

11  Misc.   112),  446,  449,  450. 
Baker  v.  Thomas   (33  X.  Y.  S.  613, 

12  Misc.  432),  445. 

Baker  &   Co.   v.   De  Vett    ([Tex.   C. 

A.  '08]  110  S.  W.  528),  873. 
Baldwin   v.   Leonard    (39  Vt.   260), 

601. 
Baldwin  v.  Smith   ( [Tex.  C.  A.  '09] 

119  S.  W.  111).  557,  932. 
Balheimer  v.  Richardt  (55  How.  Pr. 

414),  475,  557. 
Balkeme  v.  Searle    (116  Iowa,  374, 

89  X.  W.  1087).  18. 
Ball   V.   Dolan    (18   S.   D.  558,    101 

X.  W.  719),  .557,  1003. 
Ball  V.  Dolan  ( [S.  I).  Sup.  '08]   114 

X.  VV.  998),  543,  540,  560. 


Ballard  v.  Shea  (121  111.  App.  135), 

449. 
Ballentine  v.  Mercer  ( 130  Mo.  App. 

605,   109  S.  W.   1037),   17,  443, 

712,  728,  888. 
Ballinger  v.  Wilson  ( [X.  J.  Ch.  '02] 

53  A.  488),  412. 
Ballou  V.  Bergvendson  ( 9  X.  D.  285, 

83  X.  W.  10),  10,  55,  293,  969. 
Bamford  v.  Shuttleworth   (11  Ad.  & 

EI.    [Eng.]    926),  384,  385. 
Bank  of  Beloit  v.  Beale   (34  X.  Y. 

473),  24. 
Bank   v.  Garvey    (66   Xeb.   767,   92 

N.  W.  1025).  320. 
Bank  of  Hamburg  v.  Way  (4  Strob. 

[S.  C]   87),  307b. 
Banker's   L.  &   Inv.   Co.   v.   Spindle 

(108   Va.   426,   62    S.   E.   266), 

322,  533. 
Banks    v.    Judah     (8    Conn.    145), 

389b. 
Banks  v.   Pierce    (33  Colo.   4J0,   80 

P.  1036),  409. 
Barber  v.  Heads    (30  Ohio  Cir.  Ct. 

R.  127),  557. 
Barbour    v.    Craig     (6    Litt.    [Ky.] 

213),  24. 
Barendsen  v.   Wilder    ( [Mich.    Sup. 

'09]    122  X.  W.  355),  975a. 
Barksdale  v.  Security  Ins.  Co.   ( 120 

Ga.  388,  47  S.  E.  943),  244. 
Barkley  v.  Olcott   (5  X.  Y.  S.  525), 

1090. 
Barmig   v.    Pierce    (5    Watts    &    S. 

[Pa.]   548),   17. 
Barnard    v.    Coffin    (141    Mass.    37, 

6  X.  E.  364),  390,  394   414. 
Barnard   v.   Monnott    ( 1    Abb.    Dec. 

108,  33  How.  Pr.  440),  33,  290, 

454,  557. 
Barnard  v.  Monnott   (34  Barb.  90), 

292,  447. 
Barnes    v.    German    Sav.,   etc.,    Soc. 

(21  Wash.  448,  58  P.  509),  01, 

502,   557. 
Barnett    v.    Gluting    (3    Ind.    App. 

415,   29   X.   E.    154,   927),   360, 

454,  557. 
Barnev    v.   Lasbury    (76    Xeb.    701, 

107  X.  W.  989),  587. 


ZZZII 


TABLE   OP    CASES. 


[References  are  to  sections.] 


Barrett  v.  Johnson  (64  Pa.  St.  223), 

486. 
Barry    v.    Schmidt    (57    Wis.    172), 

314. 
Bartbell    v.    Peter     (88    Wis.    316, 

60   N.   W.   429),   519,   520a. 
Barton  v.  Rogers   (84  111.  App.  49), 

445,  446. 
Bass  V.  Jacobs   (63  ..lo.  App.  393), 

450. 
Bass   V.   Tolbert    ([Tex.  C.   A.   '08] 

112  S.  W.   1077),  51,  475,  559, 

656a. 
Bassford  v.  West  (124  Mo.  App.  248, 

101  S.  W.  610),  21,  68,  883. 
Bassett  v.  Brown    (105  Mass.  551), 

23,  24,  572. 
Bassett  v.   Rogers    ( 165   Mass.   377, 

43  N.  E.  180),  414,  6?0. 
Bates  V.  Copeland,  McArthur  &  M. 

([D.  C]   50),  51,  290. 
Bathrik  v.  Coffin   (43  N.  Y.  S.  313, 

13  N.   Y.  A.   D.   101),   15,  299. 
Bauersmith   v.  Min.,   etc.,  Co.    ( 146 

Fed.  95),  560. 
Bauman  v.  Nevins   (65  N.  Y.  S.  84, 

52  A.  D.  290),  154. 
Baumgarth  v.  Hayne   (54  111.  App. 

496),  448. 
Bausch  V.  McConnell    ( 13  Ohio  Cir. 

Ct.  640),  379. 
Baxter  v.  Doren   (29  Me.  434),  628. 
Beach  v.  Emerich    ( 35  N.  Y.  Super. 

Ct.    548),    460,  .462,    488,    528, 

557. 
Beach   v.  Trav.  Ins.  Co.    (73  Conn. 

118,  46  A.  867),  626,  746,  1079, 

1080. 
Beadle  v.  Sage  Ld.  &  Imp.  Co.  (140 

Mich.  199,  103  N.  W.  554),  14. 
Beahler  v.  Chirk   ( 32  Ind.  App.  £22, 

68  X.  E.  613),  631. 
Bealer  v.  Creswell   (3  Md.  196),  22, 

290,  558. 
Beard  v.  Kiik   (11  N.  H.  397),  18, 

22. 
Bears  v.  Hyland   (65  Minn.  150,  67 

N.  W.  1148),  15,  360. 
Beatty  v.  Russell   (41  Neb.  321,  59 

N,  W.  919),  482,  782. 


Beauchamp  v.  Higgins  (20  Mo.  App. 

514),  22. 
Beckly    v.    Newton    (140    111.    App. 

301),   465. 
Beebe  v.   Ranger    (35  N.   Y.  Super. 

Ct.  452),  531,  557. 
Beebe  v.   Roberts    (3   E.   D.   Smith, 

194),  57,  570,  866. 
Beekman  v.  Wilson    (61  Cal.   335), 

42,   372. 
Behrman  v.  Marcus    (102  N.  Y.  S. 

467),   557. 
Behrman  v.  Marcus    (107   N.  Y,  S. 

12),  33,  756. 
Beineke  v.  Wurgler    (77  Ind.  468), 

632a,   640. 
Bell  V.  Byerson  (11  Iowa  233),  24. 
Bell  V.  kaiser    (50  Mo.   150),  357, 

561. 
Bell  V.   McConnell    (37   O.  S.   396), 

314. 
Bell  V.  Rokeby  (15  Manitoba  327), 

305. 
Bellas  V.  Hayes  (5  Serg.  &  R.  [Pa.] 

427),   58. 
Balding  v.  Pitkin  (2  Caines  [N.  Y.] 

147),    327. 
Bellen  v.  Wein   (104  N.  Y.  S.  360), 

314,    1075. 
Bellesheim   v.    Palm    (66   N.    Y.   S. 

273,  54  A.  D.  77),  19,  446. 
Benedict  v.  Dakin    ( [III.   Sup.   '09] 

90  N.  E.  712),  735,  791a,  1128, 

1129. 
Benedict  v.  Pell   (74  N.  Y.  S.  1085, 

70  A.  D.  40),  930,  973. 
Benedict    v.    Pincus    (95    N.    Y.    S. 

1042,    109   A.    D.   20),   93,   209, 

891a. 
Benedict   v.    Pincus    (119   N.   Y.   S. 

266),  734a. 
Benedict  v.  Wilson   (  [Cal.  App.  '09] 

103  P.  350),  1118. 
Benham  v.  Ferris  ( [Mich.  Sup.  '10] 

124  N.  W.   538),   393. 
Benks   v.  Pierce    (33  Colo.   440,  80 

P.   1036).  409. 
Bennett  v.  Egan   (23  N.  Y.  S.  154, 

3   Misc.   421),  85. 
Bennett  v.  Howes  ( 15  Daly  [N.  Y.] 

43,  2  N.  Y.  S.  717),  11. 


TABLE   OF    CASES. 


XXXIU 


[References  are   to   sections.] 


Bennett  v.  Kidder   (5  Daly   [N.  Y.] 

512),  425a,  865. 
Benton  v.  Brown    ( [Iowa  Sup.  '10] 

124  N.  W.  815),  989. 
Beougher  v.  Clark   ( [Kan.  Pup.  '09] 

106   P.    39),    557. 
Berg  V.  San  Antonio  St.  R.  Co.   ( 17 

Tex.  C.  A.  291,  42  S.  W.  647), 

533. 
Bergdott  Brewing  Co.  v.  Bobe,    (33 

Pa.    Super.   Ct.   490),   254. 
Berning   v.    Pierce    (5    Watts  &    S. 

[Pa.]   548),  363. 
Berry  v.  Brumage  (46  Ind.  59).  2S5. 
Berry  v.  Tweed    (93   Iowa,   296,  61 

N.  W.  858),  54. 
Bertelson    v.    Hoflfman     (35    Wash. 

459,   77   P.   801),   41,   740. 
Bertleson  v.  Vanderhoff    (96  Minn 

184,  104  N.  W.  820),  299. 
Betz   V.    Williams,   etc..   Land,   etc., 

Co.    (46    Kan.    45,   26    P.   45iJ), 

462. 
Bevis  V.  Heflin  (63  Ind.  129),  342. 
Bickard   v.   Hoffman    (19   N.   Y.    S. 

472),   446,   657,   745,   896,   936, 

940. 
Bickford  v.  First  .Nat.  Bank  (42  111. 

238),  601. 
Bickford    v.   Searles    (41    N.    Y.    S. 

148,  9  A.  D.   158,  75  N.  Y.  S. 

606),  16. 
Biddison  v.   Johnson    (50   111.  App. 

173),  235,   431. 
Biester  v.  Evans  (59  111.  App.  181), 

557,   615. 
Big  Four  Realty  Co.  v.  Clark   ( [Mo. 

App.  '09]  V23  S.  W.  95),  560, 

1131. 
Bingham  v.  Davidson  ( 141  Ala.  551, 

37  S.  V38).  557. 
Bingham  v.  vStewart  (13  Minn.  106), 

75. 
Birch    V.    McXau^'.t     (  [Okla.    Sup. 

'09]    101    P.    1049).   557. 
Bird   v.  Blackwcll    ([Mo.  App.  '09] 

115  S.  W.  487),  299,  374. 
Bird  V.  Phillips    (115  Iowa  703,  87 

N.  W.  414),  16.  22,  454,  557. 
Bird   v.   WeblKT    ([Okla.   Sup.   '09] 

101  P.  1052),  560. 


Bishop   V.    Averill    (17   Wash.    209, 

49    P.    237,    50    P.    1024),    449, 

477. 
Bishop  V.  Stewart  (13  Nev.  25),  24. 
Bissell  V.  Terry    (69  111.   184),  590. 
Black   V.   Barr    (14   Pa.  Super.   Ct. 

98,  651),  290,  902. 
Black   V.   Snook    (204   Pa.   St.    119, 

53  A.  648),  124,  576,  893,  897. 
Blackell  v.  Greenbaum  (50  111.  App. 

143),  889. 
Blackledge  v.  Davis   ( 129  Iowa  591, 

105  N.  W.  1000),   189,  725. 
Blackwell  v.   Adams    (28  Mo.  App. 

61),  12,  134,  1009. 
Blair   v.   Austin    (71   Neb.   401,    98 

N.  W.  1040),  587, 
Blair    v.    Slosson    (27    Tex.    C.    A. 

403,   66   S.   W.    112),  477,   833, 

889,  918. 
Blake  v.  Austen  (33  Tex.  C.  A.  112, 

75  S.  W.  671),  519. 
Blake   v.   iStump    (73    Md.    160,   20 

A.  788),  208,  314,  940. 
Blakely    v.    Pursell     (90    N.    Y.    S. 

337),  85,  486. 
Blankenship    v.    Decker    (34    Mont. 

292,   85   P.   1035),  687. 
Blankenship    v.    Ryerson     (50    Ala. 

426),   41,   517,   534,   637. 
Blaydos    v.    Adams    (35    Mo.    App. 

526),   150,   170,  454. 
Bloch  v.  Lowe   (99  N.  Y.  S.  951,  51 

Misc.  8),  925. 
Block  V.  Ryan   (4  App.  Cas.  [D.  C] 

283 ) ,  *85,  86. 
Blodgett  V.  Sioux  City,  etc.,  R.  Co. 

(63  Iowa  606,  19  N.  W.  799), 

558. 
Bloodgood    V.    Short    (98   N.   Y.    S. 

775,  50  Misc.  280),  557. 
Bloomer  v.  Waldron   (3  Hill  [X.  Y.] 

361),  26,  263. 
Blount  V.  Robeson  (3  Jones  Eq.  [N. 

C]    73),  290. 
Blum   V.   Robertson    (24   Cal.    128), 

17,  26,  29. 
Blumenthal  v.  Bridges    ( [Ark.  Sup. 

'09]    120  S.   W.   974),  22,   299, 

300. 


XXXIV 


TABLE   OF    CASES. 


[References  a,re  to  sections.] 


Blumenthal  v,  Goodall  (89  Cai.  251, 

26  P.  906),  15,  22,  454-. 
Board   Tnis.    Oberlin   Col.   v.   Blair 

(45  W.  Va.  812,  32  S.  E.  203), 

14. 
Boardman  v.  Hanks  ( 185  Mass.  555, 

70  X.  E,  1012),  83,  615. 
Boddy  V.  Brummett  &  E.   (]Tex.  C. 

A.  '08]   MO  S.  W.  532),  563. 
Bogart  V.  Crosby    (80  Oal.   195,   22 

P.   84),   845. 
Bogart  V;  McWilliams   ( [Tex.  C.  A. 

95]  31  S.  W.  434),  454,  458. 
Bolheimer  v.  Richardt  (55  How.  Pr. 

[N.  Y.]    414),   475. 
Bolton  V.  Coburn  (78  Xeb.  731,  111 

X.  W.  780,  782),  41. 
Bonwell  v.  Auld    (27  X.  Y.  S.  936, 

7   Misc.  447),  314. 
Bonwell  v.   Auld    (29   X.   Y.   S.    15, 

9  Misc.  65),  314,  475,  557. 
Bonwell  v.  Howes  (1  X.  Y.  S.  435), 

314,  896. 
Bookwaiter  v.  Lansing  (23  Xeb.  291, 

36  X.  W.  549),  57-2. 
Booth  V.  Moody  ( 30tOreg.  "222,  46  P. 

884),  632a, 
Boque  v.  Marshall  ( [Ark.  ^up.  '08] 

114   S.  W.   714),  446. 
Borden  v.  Isherwood  ( 120  Iowa,  677, 

94  X.  W.  1128),  740. 
Bornstein  v.  Lane  (104  Mass.  214), 

465,  904. 
Borst  V.  Lynch   (133  Iowa  567,  110 

X.  W.  1031),  314. 
Bosseau  v.  O'Brien  (4  Biss.  [U.  S.] 

395),  24. 
Boulder  Inv.   Co.  v.  Fries    (2  Colo. 

App.  373,  31  P.  174),  22. 
Bourke  v.  Van  Keuren  (20  Colo.  95, 

36   P.   882),   304,  705. 
Bouscher  v.  Larkens    (84  Hun.  288, 

32  X.  Y.  S.  305),  292,  558. 
Bouvier's  Law  Die,  27. 
Bowe   T.   Gage    (127   Wis.   245,   106 

X.  W.  1074),  40,  110,  982. 
Bowe  V.   Gage    (132   Wis.   441,    112 

X.  W.   469),  317. 
Bowersox  v.   Hall    (73  Kan.  99.  84 

P.  557),  297. 


Bbwles  V.  Allen  (21  S.  E.  [Va.  Sup.] 

665),  38,  480. 
Bowman  v.  Officer    (53   Iowa,  640), 

294. 
Bowman  v.  Hartman   (27  Ohio  Cir. 

Ct.  309),  451. 
Bowman  v.  S.  W.  Land  Co.    ([Tex. 

C.  A.  '08]   107  S.  W.  585),  446. 
Bowser  v.   Field    ([Tex.   C.   A.  '91] 

17  S.  W.  45),  446,  743,  953,  954. 
Bowser  v.  Mick    (29   Ind.  App.   49, 

62  N.  E.  513),  994. 
Boyd   V.  Dilllingham    (33  111.   App. 

266),  314. 
Boyd  V.  Imp.  Property  Holding  Co. 

( 120  X.  Y.  S.  850 ) ,  557. 
Boyd  V.  Jennings  ( 46  111.  App.  290 ) , 

763. 
Boyd  V.  U;   S.  Mtge.,  etc.,  Co.    (88 

X.   Y.   S.   289,   94   A.   D.   413), 

42,   347. 
Boyd  V.  Watson   (101  Iowa  214,  70 

X.  W.  120),  149,  449,  557,  704, 

938,  1092. 
Boysen  v.  Fink   (80  Ark.  254,  96  S. 

W.  1056),  557. 
Boyson  v.  Robertson  ( 70  w^rk.  56,  68 

S.  W.  243),  481. 
Braekenridge   v.   Claridwe    (91    Tex. 

527,    44    S.    W.    819),    85,    474a 

728c. 
Braekenridge  v.  Claridge  ( [Tex.  Cir. 

App.  '97]  42  S.  W.  1005),  ,557. 
Bradbury  v.  Kinney    (63  Xeb.   754, 

89  X.  W.  257),  257. 
Braden  v.   Bandies    (128   Iowa  653, 

105  X.  W.  195),   314. 
Bradley  v.  Bower    ( [Xeb.  Sup.  '04] 

99  X.  W.  490),  564,  632a,  648, 

661,  833. 
Brady  v.  American  M.  &  E.  Co.   ( 83 

X.   Y.   S.    663,   86   A.   D.   267), 

626a. 
Brady   v.    Barnett    (34   Tex.   C.    A. 

433,  78  S.  W.  965),  638. 
Brady  v.  Foster    (75  X.  Y.  S.  994, 

72  A.  D.  416),  557,  658. 
Brady  v.  Maddox   ( [Tex.  C.  A.  '09] 

i24   S.   W.   739),  990a,  990b. 
Bradford  v.  Menard  ( 35  Minn.  197 ) , 

608. 


TABLE   OF    CASES. 


xxxy 


[References  are  to  sections.] 


Bradford  t.  Schmidt  (80  O.  St.  108, 

88  uSI.  E.  319),  427. 
Branaman    v.    Sherman     (49    Kan. 

771,  31  P.  167),   1067. 
Branch  v.  Moore   (84  Ark.  462,  105 

S.  W.  1178),  15,  39,  290,  1031. 
Brand  v.  Merritt   ( 15  Colo.  286,  25 

P.  175),  745,   1056. 
Brand  v.  Nagle   (107  N.  Y.  S.  156, 

122   A.   D.   490),  464,   542. 
Brandrup  v.  Britton   (11  N.  D.  376, 

92   X.   \V.  453),    18. 
Brauckman    v.    Leighton     (60    Mo. 

App.   38),  298. 
Braun  v.  Chicago   (110  III.  186),  7. 
Bray  v.  Biggs    (110  Mo.  App.   630, 

85  S.  VV.   116),  396. 
Bray  v.  Chandler    (18  C.  B.   [Eng.] 

717,  86  E.  C.  L.  718),  445.  446. 
Breen   v.   Roy    ( [Cal.   App.   '08]    97 

P.    170),    761c. 
Brennan  v.   Perry    (7   Phila.    [Pa.] 

242,  449. 
Brennan    v.    Roach     (47    Mo.    App. 

290),   445,   446. 
Bridgman  v.  Hepburn  ( 13  Brit.  Col. 

389),   502. 
Brierly  v.  Connelly   ((54  N.  Y.  S.  9, 

31  Misc.  268),  51,  290. 
Briggs   V.    Rounds    (48   Wash.   579, 

94   P.    101),   590. 
Briggs   V.   Rowe    (1    Abb.   Dec.    [N. 

Y.]   189,  4  Keyes  424),  61,  449, 

458,  502. 
Brillow    V.    Ozienkowski     (112    III. 

App.    165),    234. 
Brockenbrovv  v.   Stafford    ( [Tex.   C. 

A.  '03]   76  S.  W.  576),  632a. 
Bronnenburg  v.  Rinker  (2  Ind.  App. 

391,  28  N.  E.  568),  402. 
Brooke  v.    Smith    (13   Pa.   Cir.   Ct. 

R.  557,  33   VV.  N.  C.  74),  657. 
Brooks  V.  Leathers   (112  Mich.  463, 

70  N.  W.  1099),  17,  132.  743. 
Brookshire    v.    Brookshire    (8   Ired. 

[N.  C]   74),  15,  328. 
Brown  v.  Adams    ( [R.  I.  Sup.  '08] 

69    A.   601),   426. 
Brown  v.   Dennis    (  [Tex.  C.   A.  95] 

30  S.  W.  272),  238,  1068. 


Brown    v.    Eaton     (21    Minn.    409, 

528),   10. 
Brown  v.   Gilpin    (75  Kan.   773,  90 

P.  267),  17. 
Brown   v.   Grossman    ( 65   N.   Y.   S. 

1126,  53  A.  D.  640),  54,  186. 
Brown  v.  Helmuth  (21  N.  Y.  S.  615, 

2    Misc.    566),   488. 
Brown  v.  Keegan   (32  Colo.  463,  76 

P.    1056),   85. 
Brown  v.  Meason   ( 155  Cal.  155,  99 

P.  867),  560. 
Brown  v.   Pfau    (38  Cal.   550),    15, 

558. 
Brown    v.    Post     (1    Hun    [N.    Y.] 

303),  708. 
Brown  v,  Shelton   ([Tex.  C.  A.  '93] 

23  S.  VV.  483),  17,  446. 
Brown  v.  Smith    (113  Mo.  App.  59, 

87  S.  VV.  556),  557,  567. 
Brown  v.  Snyder   (68  X.  Y.  S.  224, 

57  A.  D.  413),  558. 
Brown    v.    VVisner    (51    Wash.    500, 

509,  no  P.  581),  85,  691a,  691b. 
Bruce  v.  Davenport    (36   Baib.    [X. 

Y.]    349),   630. 
Bruce  v.  Hurlbut  (66  X.  Y.  S.  1127, 

54  A.  D.  616),  73,  293,  969. 
Bruce  v.  Hurlbut    (81   X.  Y.  S.  54, 

81  A.  D.  311),   1010. 
Bruce  v.  Wolfe   ( 102  Mo.  App.  384, 

76  S.  VV.  723),  533,  687,  999. 
Brundage   v.    McCormick    (69    Hun 

65,  23  X.  Y.  S.  262),  113,  136. 
Brunson    v.   Blair    (44    Tex.    C.    A. 

43,    97    S.   VV.    337),   21,    1063, 

1070. 
Bryan   v.   Abert    (3   App.   Cas.    [D. 

C]    180),   446,   532. 
Brydes    v.    Clement    (14    Manitoba 

588),  557. 
Buchanan  v.   Randall    ( [S.   D.   Sup. 

'06]    109  X.  VV.  513),  798 
Buchanan   v.   Tilden    (45   X.   Y.   S, 

417,  18  A.  D.   123).  341. 
Buckley  v.  Humason  (50  Minn.  195, 

52  X.  VV.  385),  558.  576. 
Buck  V.  Hogeboom    ( 125   Iowa  526, 

90  X.  W.  C35),  291,  314,  658, 

1012. 


XXXVl 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Buckingham  v.  Harris  ( 10  Colo.  455, 

15  P.  817),  531,  557,  708,  941. 
Budd  V.  Zoller    (52  Mo.  238),  234, 

248,   430,  444. 
Buehler  v.   Weiffenbach    (46   N.   Y. 

S.   861,   21    Misc.   30),   24. 
Buhl  V.  Noe   (51  111.  App.  622),  42, 

61,   125,  502. 
Bull  V.  Price    (7  Bing.   [Eng.]  237, 

9  L.  J.  C.  P.  O.  S.  78),  501. 
liuUock    V.    Menninger     (  [Ky.    Ct. 

App.  '10]   125  S.  W.  256),  892, 

956a. 
Bumfield   v.   Pottier,  etc.,  Mfg.   Co. 

(20  N.  Y.  S.  615,  1  Misc.  92), 

219. 
Bumfield  v.    Pottier,  etc.,   Mfg.  Co.' 

(23  N.  Y.  S.  1025,  4  Misc.  194), 

735. 
Bunn   V.    Keach     (214    111.    259,    73 

N.  E.  419),  290,  462,  573. 
Burch  V.  Hester    ([Tex.   C.  A.  '08] 

109   S.   W.   399),  437. 
Burchfield  v.  Griffith  ( 10  Pa.  Super. 

Ct.  618),  446,  896. 
Burd    V.    Webster     (128    Wis.    118, 

107  N.  W.  23),  454,  477,  507. 
Burden  v.  Briquelet   (125  Wis.  341, 

104   N.   W.    83),   64,   557,   696, 

900,  1049. 
Burden  v.  Sheridan  (36  Iowa  125), 

595. 
Burke   v.    Bours    (92    Cal.    108,    2S 

P.   57,   67   Cal.   447,   8   P.   49), 

311. 
Burke  v.   Cocrswell    (39   Minn.    344, 

40    X.    W.   251),    454. 
Burke  v.  Pfeffer    (68  N.  Y.  S.  799, 

34- Misc.  774),  17,  446. 
Burkey    v.    Judd     (22    Minn.    287), 

17,  26,   333. 
Burkholder   v.    Fonner    (34   Neb.    1, 

51  N.  W.  293),  448. 
Burling   v.   Gunther    (12    Daly    [N. 

Y.]  6),  557 
Burnet   v.    Edling    (19    Tex.    C.   A. 

711,   48   S.  W.   775),  299,   300, 

360,    419,    458,    557,    661,    570, 

632,  634,   724,  758a,   781. 
Burnett  v.   Betts    (23.6   111.  4&9,  86 

N.  E.  258),  482,  558. 


Burnham  v.  Upton   ( 174  Mass.  408, 

54  N.  E.  873),  157. 
Burr    V.    Penfield     (105    N.    Y.    S. 

939,  55  Misc.  543),  663, 
Burtleson  v.  Vanderhoflf    ( 96  Minn. 

184,  104  N.  W.  820),  299. 
Bush  V.  Hill  (62  111.  216),  15. 
Butler  V.  Agnew    (9  Cal.  App.  327, 

99  P.  395),  290,  311,  559. 
Butler  V.  Baker    (17   R.   I.   582,  23 

A.  1019),  458,  464,  557,  558. 
Butler  V.  Haskell   (4  Desau.  [S.  C] 

651),   131. 
Butler  V.  Kaulback    (8   Kan.  668), 

689a. 
Butler   V.    Kennard    (23    Neb.    357, 

36   N.   W.  579),   446,  449,   450. 
Butman  v.  Butman  (213  111.  104,  72 

N.   E.   281),   291. 
Butierfield   v.   Beall    (3   Ind.   203), 

592. 
Butts  V.  Pvuby   (85  Mo.  App.  405), 

557. 
Buxton  V.  Beal    (49   Minn.   230,  51 

N.  W.  918),  218,  6!>1,  812. 
Byers  v.  Danley   (27  Ark.  77),  286. 
Byrd  v.  Frost   ( [Tex.  C.  A.  '94]  29 

S.  W.  46),  61,  502. 


Cadigan  v.  Crabtree  ( 179  Mass.  474, 

61   N.  E.   37),  24,  932. 
Cadigan  v.  Crabtree    ( 186  Mass.   7, 

70    N.    E.    1033),    15,    22,   290, 

490,   558. 
Cadigan  v.  Crabtree  ( 192  Ma?s.  233, 

78  N.   E.  412),  909,  988. 
California,  State  of,  590. 
Callaghan  v.  Pepper   (2  Ir.  Eq.  [N. 

C]    399),    10. 
Callaway    v.   Equit.    Trust    So.    (67 

N.  j.  L.  44,  50  A.  900),  208. 
Calloway    v.    Prettyman     (218    Pa. 

293,*  67  A.  418),  576,  773. 
Cameron   v.   McNair    ( 76   Mo.   App. 

366),   599.   757. 
Campbell   v.   Baxter    (41   Neb.   729, 

60  N.  W.  90),  314,  323. 


TABLE   OF    CASES. 


XXXVll 


[References  are  to  sections.] 


Campbell  v.  Chase  ( [Kan.  fcup.  '08] 

96  P.   949),   14,    18. 
Campbell  v.  Galloway  ( 148  Ind.  440, 

47   N.   E.   818),   18. 
Campbell    v.    Lombardo    ( 153    Ala. 

489,  44  S.  362),  1102. 
Campbell  v.  Thomas   (87  Cal.  428), 

42. 
Campbell  v.  Vanstine   (73  Mo.  App. 

84),  446. 
Campbell   v.   Yeager    (32   Neb.   266, 

49  N.  W.  181),  290. 
Canadian  Imp.   Co.  v.   Cooper    ( 161 

Fed.   279),   22. 
Canfield   V.  Orange    (13   N.  D.  622, 

102  N.  W.  313),  300,  483. 
Cannon  v.  Castleman  (24  Ind.  App. 

188,    55    N.    E.    HI,    57,     161, 

632a. 
Capener  v.  Hogan    (40  0.  S.  203), 

314. 
Cards  v.  Pertli   ( 100  N.  Y.  S.  1043, 

115   A.  D.  568),  42. 
Cardy  v.  Ruth   (100  N.  Y.  S.  1043, 

115  A.  D.  568),  15,  22. 
Carey   v.   Whitman    (110  Mo.   App. 

204,  84  S.  W.  1131),  39. 
Carle  v.  Parent   (Montreal  L.  R.,  5 

Q.  B.   451),   13,  42,   185. 
Carlin  v.   Lifur    (2   Cal.   App.   590, 

84  P.  292),  557,  625. 
Carlson    v.    Nathan     (43    111.    App. 

364),    141,    444,    447. 
Carman   v.    Beach    (-63   N.   Y.   97), 

208. 
Carnes  v.  Finnegan  (198  Mass.  128, 

84  N.  E.  324),  448. 
Oarnes  v.  Howard    ( 180  Mass.  569, 

63   N.   E.    122),   156,   449,  533, 

557,  932. 
Carpenter   v.   Atlas   Imp.   Co.    ( 108 

N.  Y.   S.  547,  123   A.  D.  706), 

496,  509. 
Carpenter   v.   Fisher    ( 175   Mass.   9, 

55   N.    E,    479),   290,   412,   933, 

976. 
Carpenter  v.  Monsen    (92  Wis.  449, 

65  N.  W.  1027),  262,  283,  285, 

287. 
Carpenter  v.  Rynders  (52  Mo.  278), 

454. 


Carper  v.  Sweet    (26  Colo.  647,  59 

P.  45),  447. 
Carroll  v.  Pettit   (22  F.  Y.  S.  250, 

67  Hun  418),  331,  454,  737. 
Carroll  v.  O'Shea  ( 18  N.  Y.  S.  146, 

42  N.  Y.  St.  R.  671),  208. 
Carroll    v.    O'Shea     (19    N.    Y.    S. 

374),  450. 
Carroll    v.    Tucker     (21    N.    Y.    S. 

952.  2  Misc.  397),  11,  393. 
Carstens  v.  McReavy     ^   Wash.  359. 

25  P.  471),  18. 
Carter  v.  Harrell   ( [Tex.  C  A.  X9] 

118  S.  W^  1139),  517. 
Carter   v.    Owens    ( [Fla.    Sup.    '09] 

50  S.  W.  641),  290,  557. 
Carter    v.   Simpson    ( 130    111.   App. 

328,  609. 
Carter    v.    Webster     (79    (11.    435), 

557. 
Carsee  v.  Paul   (41  N.  H.  24),  24. 
Carson  v.  Baker   (2  Colo.  App.  L48, 

29  P.   1134),  505. 
C^arson  V.  Smith    (5  Minn.  78),  26, 

63,   335. 
Carter  v.  Moss   (210  Pa.  612,  60  A. 

310),  253,  916. 
Caruthers   v.  Reeser    ( 134   111.   App. 

370),  465. 
Carutliers  v.  Ross  ( [Tex.  C.  A.  '02] 

63  S.  W.  911),  962. 
Caruthers  v.  Towne    (86   Iowa  318, 

53  N.  W.  240),  227,   228,  615, 

745. 
Casey  v.  Casey    (14   HI.   112),   131. 
Casey  v.  Richards    (  [Cal.  App.  '09] 

101   P.   36),   397,  756. 
Cashman   v.    Glover    (11    111.    600), 

15. 
Cassaday  V.  Carrahan  (119  Iowa  500, 

93   N.  W.  386),  848,   930,  984. 
Cassaday    v.    Seely    (69    Iowa    509, 

29   N.  W.  432),  557. 
Castner  v.  Richardson  ( 18  Colo.  496, 

33  P.  163),  12,  15,  17. 
Caston  V.   Quimby    (178   Mass.   153, 

59  N.  E.  653),  546,  575. 
Cathcart   v.    Bacon    (47    Minn.    34, 

49  N.  W.  331),  17,  292,  447. 


XXX  VI 11 


TABLE    OF    CASES. 


[References  are  to  sections.] 


Cavender    v.    Waddingliam     (2    Mo. 

App.    ool),    00,    290,    374,    375, 

742. 
Cawker  v.  Apple    (15  Colo.   141,  25 

P.   181),  454. 
Center  v.  Conglomerate  Min.  Co.  (23 

Utah  165,  64  P.  362),  8S9,  893, 

895. 
Chambers    v.    Ackley    (91    X.    Y.   K. 

78),  225,  458. 
Chambers  v.  Herring    ( [Tex.   C.  A. 

'05]  88  S.  W.  371),  462,  630. 
Chambers   v.    Peters    (63    X.    Y.   S. 

151,  30  Misc.  756),  234.   . 
Champion  Iron  Fence  Co.  v.  Brad- 
ley (10  111.  App.  328),  949. 
Chandler    v.    Sutton     (5    Daly    [X. 

Y.]    112),  69,  141,  444,  447. 
Chapin  v.  Bridges  (116  Mass.  105), 

114. 
Chapman   v.   Currie    (51    Mo.   App. 

40),    314,    518,   559. 
Charles  v.  Arthur  ( 84  X.  Y.  S.  284 ) , 

10. 
Charles  v.  Cook    (84  X.  Y.  S.  867, 

88  A.  D.  81),  24,  557. 
Charlton      v.      Wood      ( 1 1      Heisk. 

[Tenn.]    19),  557,  531. 
Chase  v.  Veal    (83  Tex.   333,   18   S. 

W.   597),   545,  557,    1054. 
Chatfield    v.    Continental    B.    &    L. 

Ass'n    (6  €al.  App.   665,  92   P. 

1040),   635a. 
Cheatham  v.  Yarborough   (90  Tenn. 

77,  15  S.  W.  1076),  501,  533. 
Cheshire  Prov.  Inst.  v.  Fuesner   (63 

Xeb.  682,  88   X.  W.  849),  256. 
Chesum  v.  Kreybaum  (4  \Vash.  680, 

30  P.   1098).  82. 
Childs   V.    Ptomey    (17    Mont.    502, 

43  P.    714),   61,   475,   502,  5o7, 

678,   740,   743. 
Chipley    v.    Leuthe     (60    Mo.    App. 

15),   557. 
Chilton   V.   Butler    (1    E.   D.   Smith 

[X.  Y.]    150).  24,  61,  446,  454, 

502,   558,   712. 
Chisolm   V.   Gadsden    (1    Strob.    [S. 

C]   220),  315. 


Christian    v.    McDonnell     ( 127    Mo. 

App.    630,    106    S.    W.    1104), 

1028. 
Christensen  v.  Wooley  (41  Mo.  App. 

53),  533,  839,  846. 
Church  V.  Dunham    ( 14  Idaho  776, 

96  P.  203,  205),  446,  454,  803, 

1042. 
Church   V.   Johnson    (93   Iowa    544, 

61  X.  W.  916),  50,  849. 
Church  V.  Sterling   (16  Conn.  388), 

35. 
City  of  St.  Louis  v.  MeCann    ( 157 

Mo.  301,  57  S.  W.   1016).  600. 
Clammer  v.  Eddy  (41  Colo.  235,  92 

P.  722),  17,  104. 
Clark    V.   Allen    (125    Cal.   276.    57 

P.  985),  369,  475,  557,  880. 
Clark  V.  Bird,   (72  X.  Y.  S.  769,  66 

A.  D.  284),  57,  290,  205,  567. 
Clark  V.  Dalziel    (3  Cal.  App.   121, 

84  P.   429),  15. 
Clark  V.  Dayton   (87  Minn.  454,  92 

X.  W.  327),  204. 
Clark  V.  Delano   (Mass.  Sup.  10,  91 

X.  E.  299 ) .  389c. 
Clark  V.  Graham  (6  Wheat.  [U.  S.] 

577),   592. 
Clark    V.    Henry   G.    Thompson    Co. 

(75  Conn.  161,  52  A.  720),  240 

463.  533. 

Clark  V.   Morris    (30   App.    [D.   C] 

553),   446. 
Clark  V.  Xessler  (50  111.  App.  550), 

17,  446. 
Clark  V.  Van  Reinsdeck    (9   Cranch 

[U.  S.]    153),  24. 
Clark    V.    Wilson     (41    Tex.    C.    A. 

450,    91    S.    W.    627),    40,    458, 

464,  717,   719,   751,   825. 
Clarkson   Home,   etc.,   v.   R.   R.   Co. 

(87    X.    Y.    S.    348,    92    A.    D. 

491).   38,  574. 
Clapp    V.    Hughes    (1    Phila.    [Pa] 

382),  39,  454. 
Clements    v.    Stapleton     ( 136    Iowa 

137,  113  X.  W.  548),  557,  705, 

761b. 
Clendenin  v.  Pancoast   (75  Pa.  St. 

213),  889. 


TABLE   OF    CASES. 


XXXIX 


[References  are  to  sections.] 


Clifford  V.  Meyer  (6  Ind.  App.  633, 

34   N.    E.    23),    361,    407,   446, 

570,  579,  8S6. 
Close  V.   Browne    (230   111.   228,   82 

X.  E.  629),  66,  587. 
Coates  "v.    Locust    Point   Co.     (102 

Md.  291,  62  A.  625),  470,  576, 

607. 
Oobb  V.  Dunlevy    (63  W.  Va.  398, 

60   S.   E.   384),   576,  604,   824, 

1026. 
Cobb  V.  Kenner    ( [Ch,  App.  Tenn.] 

42  S.  W.  277),  54. 
Codd    V.    Seitz    (94    Mich.    191,    53 

X.  W.  1057),  39,  893,  894. 
Cody  V.  Dempsey   (83  N.  Y.  S.  899, 

86   A.  D.   335),   454,  477,   600, 

893,   905. 
Coe  V.   Ware    (40   Minn.    404),   42 

N.  W.  205),   165,  290. 
Coffin  V.  Linxweiler  ( 34  Minn.  320 ) , 

12,  17. 
Cohn  V.  Lee    (117  N.  Y.   S.  550), 

443. 
Cohn  V.  Jas.  MeCreary  R.  Co.    (92 

N.  Y.  S.   143,   102  A.  D.  611), 

38,  216a. 
Cohen  v.  Farley  (58  N.  Y.  S.  1102, 

28  Misc.  168),  451. 
Cohen  v,   Hirshfield    (16   Daly    [N. 

Y.]  96,  9  N.  Y.  S.  512),  318. 
Cohen  v.  Boccuzzi   (86  N.  Y.  S.  187, 

42  Misc.  544),  18. 
Colburn  v.  Seymour    (32  Colo.  430, 

76  P.  1058),  717. 
Cole   V.   Kosch    (102   N.   Y.   S.    14, 

116  A.  D.  715),  33. 
Ooleman    v.    Garingues     (18    Barb. 

60),    10,   18,  418. 
Coleman  v.  Meade   (13  Bush.  [Ky.] 

358),  532,  557,  717. 
Coleman  v.  Stark   (1  Oregon  115), 

24. 
Coles  V.   Meade    (5  Pa.   Super.   Ct. 

334),   576. 
CoUand    v.    Trepot     (70    111.    App. 

228),  149,  626. 
Collier   v.   Johnson    (23   Ky.   L.   R. 

2453,   67   S.   W.  830),   17,  22, 

446. 


Collier   v.   Wayman    (114  Ga.   944, 

41  S.  E.  50),  242. 
Collins  V.  Case   (93  Wis.  230),  291. 
Collins  V.  Fowler  (8  Mo.  App.  588), 

475,  557. 
Collins    V.    McClurg    (1    Colo.   348, 

29   P.   299),   291,   314,   414. 
Collins   V.   Padden    (120    Iowa   381, 

94   X.   W.   905),   454. 
Collins  V.  Smith   (18  111.  180,  162), 

590. 
Collins  V.   Snow    (7   Robt.    [N.   Y.] 

623),  24. 
Colloty  V.   Schuman    (75   N.   J.   L. 

97,  70  A.  190),  927. 
Colonial  Tr.  'Co.  v.  Pac.  Packing  & 

X.   Co.    (158   F.  277,   85   C.   C. 

A.  539),  446,  454. 
Colvin    V.    Blanchard     ( [Tex.    Sup. 

'07]    106   S.    W.    325),    17,    18, 

24: 
Colvin  V.  Holbrook   (2  X.  Y.  126), 

384,  642b. 
Colvin  V.  Lyons  ( 15  Idaho  180,  96  P. 

572),  896. 
Colvin    V.   Williams    (3    Har.    &    J. 

•      [Md.]    38),    578. 
Colwell  V.  Tompkins  ( 158  X.  Y.  690, 

53  X.  E.    1124),  446. 
Combes   v.   Adams    (150   X.   C.   64, 

63  S.  E.  186),  18. 
Combes  v.  Stewart    (150  X.  C.  64, 

63  S.  E.  186),  18. 
Com.  Bank  v.  Jones   (18  Tex.  811), 

24. 
Com.  Xat.  Bk.  v.  Hawkins   (35  111. 

App.  403),  21,  1069. 
Commonwealth  v.   R.   E.   Trust   Co. 

211   Pa.   51),   60  A.  551),  576. 
Commonwealth    v.    Sam.    W.    Black 

Co.  (34  Pa.  Super.  Ct.  431),  38. 
Como  v.  Pt.  Henry   Co.    (12   Barb. 

[X.  Y.]    27),   24. 
Conde  v.  Barton    (62  Cal.  1),  853. 
Condict    V.    Cowdrey    (5    X.    Y.    S. 

187,  57  Super.  Ct.  66),  423a. 
Condict  v.  Cowdrey  (139  X.  Y.  273, 

34  X.  E.  781),  517.  534. 
Condict   v.   Cowdrev    (19    X.   Y.   S. 

699,  61  X.  Y.  Super.  315),  896. 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Condict  V.  Cowdrey  ( 123  N.  Y.  463, 

25  N.  E.  946),  889,  906. 
Condit  V.   Blackwell    (22  N.  J.  Eq. 

481),   708. 
Condit   V.    Sill    (18   N.    Y.    S.   97), 

166,  1074. 
Conklin  v.  Krakauer    (70  Tex.  735, 

11  S.  W.   117),  533,  554. 
Constant  V.  Univ.  Rachester   ( 17  N. 

Y.  S.  363),  265. 
Contant    v.    Servoss     (3    Barb.    [N. 

Y.]   128),  26,  263. 
Conwell  V.   Smith    (142  Pa.  St.  25, 

21  A.   793),  314,   559. 
Cook  V.  Fryer    (3  Ky.  L.  R.  612), 

39. 
Cook  V.  Kroemke    (4  Daly   [N.  Y.] 

268),  593,  717. 
Cook   V.    Phillips    (56   N.   Y.   310), 

231, 
Cook  V.   Piatt    (126   Mo.   App.   553, 

104    S.     W.     1131),    538,    540, 

«37b,  700. 
Cook  V.  Whiting    ([Iowa  Sup.  '09] 

122  N.  W.  835),  456,  689. 
Coolican  v.   Mil.   &   S.   St.  M.   Iron 

Co.    (79    Wis.    471,    48    N.    W. 

717),  138,  305,  901. 
Cooper  V.  111.  C.  R.  Co.    (57  N.  Y. 

S.  925,  38  A.  D.  22),  279,  280. 
Cooper  V.   Lawrence    (110  N.  Y.  S. 

238),  716. 
Cooper    V.    O'Neill     (103    N.    Y.    S. 

122,  53  Misc.  319),  536. 
Cooper  V.  Upton   ( [W.  Va.  Sup.  '09] 

64  S.  E.  523),  446,  557. 
Copeland  v.  Mer.  Ins.  Co.    (6  Pick. 

[Mass.]    198),  389b. 
Copeland  v.  Stoneham  Tannery  Co. 

(142   Pa.  St.   446,   21   A.   825), 

12,  17,  24. 
Corbal   v.   Beard    (92   Iowa  360,   CO 

N.   W.  636),  532. 
Corbett  v.   Waller    (27   Wash.   242, 

67   P.   567),   357. 
Corbin    v.    M.    &    T.    Bk.     (106    X. 

Y.    S.    573,    121    A.    D.    744), 

290,  539. 
Corder    v.    O'Neill     (176    Mo.    401, 

75  S.  W.  764),  17,  446,  571. 


Corder  v.  O'Neill  (207  Mo.  632,  106 

S,  W.  10),  371. 
Cornell  v.  Hanna   ( [Kan.  App.  '98  J 

53   P.   790),   411,  563. 
Corning  v.  Calvert  (2  Hilt.  [N.  Y.] 

56),  444,  557. 
Cornwell    v.    Foord     (96    111.    App. 

366),  290,  414. 
Corse   V.    Kelly    ( [Kans.    Sup.    '09] 

101  P.  10i6),  558. 
Cosgrave  v.  Leonard  Mer.  Co.    (175 

Mo.    100,   74   S.    W.   986),    116, 

870. 
Costello  V.  Goldback,  9  Phila.  [Pa.] 

158),  558,  576. 
Costigan  v.  Newland   ( 12  Barb.  [N. 

Y.]   456),  384,  642b. 
Couch  V.  IngersoU   (2  Pick.  [Mass.] 

292),    168. 
Courey    v.    Hoover     ( 10    La.    Ann. 

437),  466,  558. 
Courtier   v.   Lydecker    (71   N.   J.   L. 

511,  58  A.   1093),  557. 
Covey  V.  Henry  (71  Neb.  118,  98  N. 

W.  434),  647,  793. 
Cowan   V.    Wheeler    (31    Me.    439), 

24. 
Coward   v.    Clinton    (122   Cal.    451, 

55  P.  147),  557. 
Cox  V.  Bowling   (54  Mo.  App.  289), 

15,   22. 
Cox  V.  Haun    (127  Ind.  325,  26   N. 

E.  822),  475,  557. 
Cox  V.  Hawke   (93  N.  Y.  S.  1117), 

533. 
C^ane  v.  Eddy   (191  111.  645,  61  N. 

E.   431),  67,  570. 
Craig   v.    Wead    (58    Neb.    782,    79 

N.  W.  718),  446. 
Crandall   v.   Phillips    (43   N.   Y.   S. 

299,  13  A.  D.   118),  252,  1058. 
Crane  v.  McLormiek    (92  Cal.   176, 

28  P.  222),  13,  42. 
Craven   v.   House    ( [Mo.    App.   '09] 

120  S.  W.  686),  11. 
Creager  v.  Johnson   (114  Iowa  249, 

86  N.  W.  275),  743,  795. 
Cremer  v.  Miller    (56  Minn.  52,  57 

N.  W.  318),  449,  570. 
Crevier   v.   Stephen    (40  Minn.   288, 

41  N.  W.  1039),  889. 


TABLE   OF    CASES. 
[References  are   to   sections.] 


xli 


Crockett  v.   Grayson    (98   Va.    354, 

36  S.  E.  477),  40,  313,  454,  524. 
Grombie  v.  Waldo   (137  N.  Y.   129, 

32  N.   E.    1042),   218,   427. 
Crone  v.  Miss.  Valley  Trust  to.  (85 

Mo.  App.  601),  445,  449,  450. 
Cronin   v.   American   Securities   Co. 

([Ala.    Sup.    '09]    50    S.    915), 

19,  22. 
Crook   V.   Forst    (116   Ala.   395,   22 

S.  540),    13,  61,  328,  602,  63^, 

657. 
Crosby    v.    St.    Paul    Lake    Ice   Co. 

(74  Minn.   82,  76  N.  VV.  958), 

12,   17. 
Crosby  v.   Watters    (28   Pa.   Super. 

Ct.    559),   39. 
Crosthwaite  v.  Lebus  ( 146  Ala.  525, 

41    S.    853),    409. 
Crosto    V.    White    (52    Hun    473,    5 

N.  Y.  S.  718),  224,  449. 
Crouse  v.  Rhodes  (50  111.  App.  120), 

840. 
Crowe  V.  Harmon   (204  U.  S.  241), 

15,    34,    46,    101. 
Crowe   V.   Trickey    (204   U.   S.   228, 

27  S.  Ct.  275),  15,  34,  46,  101. 
Crowley  Co.  v.  Myers    (69  N.  J.  L. 

245,  55   A.  305),   54,    113,    136, 

369,  454. 
Crowley  v.  Somerville  (70  Mo.  App. 

376),   446. 
Crowningshield  v.  Foster  ( 169  Mass. 

237,   47   N.    E.    879),    141,   444, 

447,  744,  968. 
Crozier  v.  Reins   ( 4  111.  App.  584 ) , 

26,   310. 
Crozier  v.  Karr  (11  Texas  376),  24. 
Cullen  V.  Bell   (43  Minn.  226,  45  N. 

W.  428),  292,  447,  557. 
Cnlp  V.  Powell    (68  Mo.  App.  238), 

313,  321,   749. 
Cumberland,    etc.,   Co.    v.    Sherman 

(30  Barb.    [N.  Y.]   553),  389b. 
Cunlifr   V.  Hausman    (97   Mo.   App. 

467,    71    S.   W.  368),   365,   444. 
Curlee   v.   Reeves    ( [Neb.   Sup.   '09] 

123  N.  W.  420),   1005a. 
Curry  v.  Fetter  (15  Ky,  L.  R.  494), 

557. 


Curry  v.  Terry  ( 34  Miss.  797,  69  N. 

Y.  S.   932),  208, 
Curtis  V.  Nixon   (24  L.  T.  R.  N.  S. 

[Eng.]  706),  199. 
Curtis  V.  Wagner   (98  111.  App.  345, 

558. 
Curtiss   V.   Mott    (90   Hun,   439,   35 

N.   Y.  S.    983),    557. 
Cusack  V.  Aikman  (87  N.  Y.  S.  940, 

93  A.  D.  579),  633. 
Oushman   v.    Glover    (11    111.    600), 

27,   137. 
C-ushman  v.  Gore    (1  Hilt.    [N.  Y.] 

356),  558. 
Cutters    V.   PiersoU    (146   Cal.    690, 

81   P.  25),  732. 
Czarnowski  v.  Holland  (5  Ariz.  119, 

78  P.  890),  464,  1078b. 


Dal    V.    Fisher     ( [S.    D.    Sup.    '06] 

107  N.  W.  534),  300. 
Daley  v.   Russ    (86  Cal.    114,  24  P. 

867),  638,  667,  885. 
Dalke  v.  Siryer    ( [Wash.  Sup.  '09] 

105  P.  1031 ) ,  445,  454. 
Daniels  v.  Columbia  Height  Ld.  Co. 

(9  App.  [D.  C]  483),  305,  370, 

445. 
Danielson   v.    Goebel    (71   Neb.   300, 

98  N.  W^  819),  590. 
Darling  v.  Howe    (14  N.  Y.  S.  561, 

60  Hun,  578),  466,  741,  892. 
Darrow   v.   Harlow    (21    Wis.   306), 

41,  42. 
Darst  V.  Doom    (38  111.  App.  397), 

561. 
Dartt   V.   Somnesym    (80   Minn.   55, 

90   N.    W.    115),   51,    290,   626, 

764. 
Dater  v.  Jackson    (76  Kan.  5C8,  92 

P.  546),  314,  674, 
Daube  v.  Nessler   (50  111.  166),  196. 
Davenport  v.  Ash    (121  La.  209,  46 

S.  213),  25. 
Davenport  v.  Corbett   (98  N.  Y.  S. 

403,  112  A.  D.  382),  36,  92. 
Davis  V.  Cassette   (30  111.  App.  41), 

446,  716. 


xlii 


TABLE   OF    CASES. 
[References  are  to  sections.] 


Davis   V.   Gordon    (87   Va.    539,    13 

S.  E.  35),  18,  42. 
Davis    V.    Hamlin     (108    III.    139), 

203. 
Davis  V.  Lawrence  (52  Kan.  333,  34 

P.  1051),  533. 
Davis  V.  Morgan  (9G  Ga.  518,  23  S. 

E.  417),  932. 
Davis  V.  Thomas  (87  Minn.  301,  91 
Davis  V.  True   (85  X.  Y.  S.  843,  89 

A.  D.  319),  221,  1093. 
Davis   V.    Silverman    (90   N.    Y.    S. 

589,  98  A.  D.  305),  290,  649. 
Davis  V.  Van  Tassel    (107  X.  Y.  S. 

910),   17. 
Davis  V.  Weber    (92  X.  Y.   S.   823, 

4G  Misc.  590),  9G. 
Davidson  v.  Wills   ([Tex.  C.  A.  '06] 

96  S.  W.  634),  149,  191. 
Davison   v.  Herndon    (125   Ga.   385, 

54  S.  E.  92),  245. 
Day    V.    Hale     (50    111.    App.    115), 

12,  17. 
Day  V.  Porter    (161   111.  235,  43  X. 

E.  1073),  362,  444,  454. 
Dayton  v.  American  Steel  Barge  Co. 

(73  X.  Y.  S.  316,  38  Misc.  223; 

79  X.  Y.  S.  1130,  76  A.  D.  454), 

19,  24,  557. 
Dayton    v.    Ryerson    ( 13    How.    Pr. 

281),   740. 
Dean  v.  Archer   (103  111.  App.  455), 

446,  450. 
Dean    v.    Williams     ( [Wash.     Sup. 

'10],    106    P.    130),    557,    1125, 

1126. 
Dearing  v.  Sears    (3  X.  Y.  S.   31), 

371,  833b. 
De  Armet  v.  Milner   (20  Pa.  Super. 

Ct.  369),  314. 
Decker    v.    Widdicomb     (137    Mich. 

331,  100  X.  W.  573),  733. 
Deep   River,    etc.,    v.    Fox    (4    Ired. 

[X.  €.]   Eq.  61 ) ,  389b. 
Deford    v.    Sheperd     (6    Kan.    App. 

428,  49   P.   795),   411. 
Deitsch    v.     Feder     (86    X.    Y.    S. 

802),  21. 
Dekker  v.  Klingman  ( 149  Mich.  96, 

112  X.  W.  727),  14. 


Dekremcn  v.  Clothier   (96  X.  Y.  S, 

525,  109  A.  D.  481),  17,  891a. 
De   L'Archerie    v.     Rutherford 
([Wash.     Sup.     '09],     102     P. 

1033),  291,  314. 
Delaplaine  v.  Turnley  (44  Wis,  31), 

454,  557. 
Delta,  etc.,  Ld.  Co.  v.  Wallace    (83 

Miss.    656,    30    S.    263),    449, 

450. 
Demarest  v.   Spiral   R.   T.   Co.    (71 

X.  J.  L.  14,  58  A.  161),  234. 
Deming  Inv.  Co.  v.  Coolidge  ( [Colo. 

Sup.  '09],  104  P.  392),  307. 
Deming  Inv.   Co.  v.  Meyer    ( [Okla. 

Sup.  '07],  91  P.  846),  290,  320, 

456,  481. 
Dempster    v.     Cochran     ( 174     Fed, 

587),  884b. 
Denis  v.  Tilton   (120  La.  226,  45  S. 

112),  47. 
Denk  Bros.  C.  &  C.  C.  v.  Stroetter 

(229    111.    134,   82    X.   E.    250), 

754. 
Dennis    v.    Charlick     (6    Hun,    21), 

557. 
Dennis   v.    Walters    ( 123    111,    App. 

93),  499. 
Dennison   v.   Gault    ( 132   Mo.   App. 

301,  111  S.  W.  844),  314,  706a. 
Dent  V.  Powell  (93  Iowa,  711,  61  X. 

W.   1043),  41,  717. 
Dent  V.   Powell    (80   Iowa,   458,  45 

X.  W.  772),  1080. 
Denton   v.   Abrams    ( 105    X.   Y.    S. 

2,  120  A.  D.  593),  17,  SO. 
Denton  v.  Howell    (  [Tex.  C.  A.  '05], 

87   S.   W.  221),   783a. 
Derrickson  v.  Quimby   ( 43  X.  J,  L. 

373),  446. 
De  Rutte  v.  Muldrew  (16  Cal.  505), 

26,  205,  328. 
De  Santos  v.   Taney    ( 1 3   La.   Ann. 

151),  449. 
Desmond    v.    Stebbins     ( 140    Mass. 

339,    5    X.    E.    150),    446,    450, 

456. 
Despatch,  etc.,  v.  Bellamy  Mfg.  Co. 

(12    X.    H.    205),    24. 
De   Steiger   v.   Hollington    ( 17   Mo. 

App.  382),  51,  290. 


TABLE   OF    CASES. 


xliii 


[References  are   to   sections.] 


Deutseh  v.  Baxter  (9  Colo.  App.  58, 

47  P.  405),  314. 
Dewell  V.  Moody  ( 24  Tex.  C.  A.  627, 

■60  S.  W.  269),  447. 
De  Wolf  V.  Wis.  Lake  Ico  &  Cartage 

Co.  ( [Wis.  Sup.  '10]   124  N.  W. 

297),  86. 
Dexter  v.  Collins   (21  Colo.  435,  42 

P.   G64),   740,   747. 
De  Zavola  v.  Rozaliner  (84  N.  Y.  S. 

909),  141,  444,  445,  440,  447. 
Diamond   v.   Hartley    (55   N.   Y.   S. 

994,  38  A.  D.  87;   61  N.  Y,  8. 

1022,  47  A.   D.   1),   451. 
Diamond   v.   Wheeler    (80   N.   Y.  S. 

416,    80    A.    D.    58),    447,    454, 

458,  496. 
Dickerson     v.     Conway     (12     Allen 

[Mass.],   487),   24. 
Dickinson  v.  Halm  (  [S.  D.  Sup.  '09], 

119  N.  W.  1034),  901,  1114. 
Dickman  v.  Updike   ( [X.  J.  Err.  & 

App.  '01],  49  A.  712),  18,  291. 
Dickson    v.    Owens    ( 134    111.    App. 

501),  446. 
Didem    v.    Duralde    (2    Hob.    [La.] 

163),   449,   543. 
Dike  V.  Haight  ( 108  N.  Y.  S.  1066), 

837,  838. 
Dillard  v.  Olalla  Min.  Co.   (52  Ore. 

126,  96  P.  678),  887. 
Diltz   V.   Spahr    (16   Ind.   App.   591, 

45  N.  E.  1056),  1053a. 
Distad  V.  Shanklin    ( 15   S.   D.  507, 

90  X.  W.  151),  796. 
Dixon  V.   Daub    (17   Pa.   Super.  Ct. 

168),    893. 
Dodge  V.  McDonnell   (14  WiL.  600), 

24. 
Dodson  V.  Millikin  (27  App.  [D.  C] 

500,    209    U.    S.    237),    18,    454, 

458,    464.    533. 
Dolan  V.  Scanlan  (57  Cal.  261),  558. 
Dole    V.    Sherwood    (41    Minn.    535, 

43  N.  W.  569),  13,  42. 
Dolph  V.  Wainscott   (14  Ky.  L.  R. 

304),  475. 
Donald    v.    Lawson     (87    N.    Y.    S. 

485),  557,  615. 
Donavan   v.   Weed    (182   N.    Y.   43, 

74  X.  E.  563),  975. 


Donley  v.  Porter  (119  Iowa,  542,  93 

X.  W.  574),  840. 
Donnelly  v.  Chetejian  (115  X.  Y.  S. 

125),   17. 
Donney  v.  Turner   (51  X\  Y.  S.  105, 

28  A.  D.  491),  632a,  666. 
Donohue   v.   Flanagan    (9   X.   Y.   S. 

273,  28  X.  Y.  St.  757).  488. 
Donville    v.    Comstock     (110    Mich. 

693,   69   X.   W.    79),    439,   557, 

558. 
Doonan  v.  Ives    (73  Ga.  295),  558, 

743. 
Doran  v.  Bernard    (45  X.  Y.  S.  387, 

18    A.    D.    36),    557,    694,    726, 

767. 
Doran    v.    Bussard     (45    X.    Y.    S. 

387,   18  A.  D.  36),  446,  743. 
Dorian  v.  Forrest  (91  X.  Y.  S.  431, 

101  A.  D.  32),  234. 
Dormitzer  v.  German   Sav.  &  Loan 

Soc.  (23  Wash.  132,  62  P.  862), 

57,  62,  258,  268. 
Dorrington  v.  Powell   (52  Xeb.  440, 

72  X.   W.  587),   119,  449,  587. 
Dorsey  v.  Clark  ( 4  Harr.  &  J.  [Md.] 

551),  368,  595. 
Dotson  V.   Toole    (129  Cal.   488,   62 

P.  92),  590. 
Doty  V.   Miller    (43   Barb.    [X.   Y.] 

529),  533. 
Downing   v.   Buck    (135   Mich.    636, 

98  X.  W.  388),  12,  17,  24,  557. 
Dowling  V.  Merrill   (165  Mass.  491, 

43  X.   E.   295),  445,  446. 
Drake   v.   Biddinger    (30   Ind.   App. 

357,  66  X.  E.  56),  33. 
Dreisbach  v.  Rollins    (39  Kan.  268, 

18  P.  187),  113,  136,  376,  446. 

450. 
Dreyer  v.    Rush    (42   How.    Pr.    [X. 

Y.]  22,  3  Daly.  434),  446,  557, 

581,   6f^7. 
Drumrighc  v.  Philpot  (16  Ga.  424), 

24,  57,  592. 
Drury  v.  Xewnian    (99  Mass.  256), 

630,  874. 
Dubois    V.    Dubois     (54    Iowa,    216, 

6  X.  W.  261),  557. 
Duckworth  v.  Rogers    (95  X.  Y.  S. 

1089,  109  A.  D.  168),  224. 


xliv 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Duclos  V.  Cunningham    ( 102  N.  Y. 

678,    6    N.   E.    790),   291,   530, 

657. 
Duffy  V.  Hobsen  (40  Cal.  240),  18. 
Duncan   v.   Borden    ( 13   Colo.    App. 

481,  59   P.    60),   211,   44^,  572, 

983. 
Duncan  v.  Holder  ( [N.  M.  Sup.  '10] 

107  P.  685),  300. 
Duncan  v.  Kearney   (72  Conn.  585, 

45  A.  358),  440. 
Duncan  v.  Niles    (32  111.  532),    18, 

567. 
Dunlap  V.  Richards  (2  E.  D.  Smith 

[N.  Y.]    181),  51,  290. 
Dunn    V.    Mackey     (80    Cal.    104), 

1089. 
Dunn  V.   Price    (87   Texas,   318,   28 

S.  W.  681),  17. 
Dunsmeier   v.   Lowenberg    (31   Can. 

Supreme  Ct.  334),  889. 
Durgin  v.  Somers    (117   Mass.  55), 

790. 
Durkee  v.   Gunn    (41    Kan.   496,   21 

P.  637),  15,  37,  299,  535,  584. 
Durkee  v.  Vt.  Cen.  R.  Co.    (29  Vt. 

127),  598. 
Duryea    v.    Vosburgh    ( 1    N.    Y.    S. 

833),  806. 
Dutcher  v.  Empire  League    (113  N. 

Y.  S.  1083),  839. 
Dwight  V.  Blackmar  (2  Mich.  230), 

306. 
Dwyer    v.    Raborn     (6    Wash.    213, 

33   P.   350),   85. 
Dyer  v.  Duffy    (39  W.  Va.   148,   19 

S.  E.  540),  26,  613. 
Dyer   v.   Sutherland    (75   111.   583), 

12. 


Earp  V.  Cummins   (54  Pa.  St.  394), 

40,  446,   447. 
Easterly  v.  Mills  (  [Wash.  Sup.  '09] 

103  P.  475),  314. 
Eastland    v.    Maney    (30    Tex.    Civ. 

App.    147,   81  "S.   W.   574),    11, 

42,   328,    519,   836. 
Easton  Packing  Co.  v.  Kennedy  '131 

Cal.  Ill,  63  P.  130),  461,  104-8. 


Ebbert    v.    Wilcox    (165    Mich.    69, 

118  N.  W.  735),  987a. 
Eckert  v.  CoUott  (46  111.  App.  361), 

558,    576,    628. 
Edmonson  v.  Baker    ( 12  Ky.  L.  R. 

93),  314. 
Edwards  v.  Davidson    ( [Tex.  C.  A. 

'04]   79  S.  W.  48),   18,  24,  63, 

343,  728a. 
Edwards  v.   Goldsmith    (16  Pa.   St. 

43),  587. 
Edwards  v.  Pike    ( [Tex.  C.  A.  '08] 

107   S.   W.  586),  446. 
Edwards  v.  Tyler    (141  111.  454,  31 

N.  E.  312),  39. 
^gan  V.    Kiefordorf    (38   N.   Y.    S. 

81,  16  Misc.  385),  533. 
Eggland  v.  South   ( [S.  D.  Sup.  '08] 

118   N.  W.   719),  465. 
Eggleston  v.  Austin   (27  Kan.  245), 

305,   445,    997. 
Ehrenworth  v.  Putnam   (  [Tex.  C.  A. 

'00]  55  S.  W.  190),  12,  17,  46, 

836. 
Eichberg  v.   Ware    (92  Ga.  508,   17 

S.  E.  770),  741. 
Eldridge  v.   Walker    (60   111.   230), 

319. 
Elliott  V.   Barrett    (144   Mass.  256, 

10  X.  E.  820),  590. 
Ellis    V.    Dunsworth    (49    111.    App. 

187),  454. 
Ellsmore  v.  Gamble   (62  Mich.  543, 

29  N.  W.  97),  446. 
Elwell    V.    Chamberlain    (31    N.   Y. 

611),  24. 
Emberson   v.    Deane    (46   How.   Pr. 

[N.   Y.]    236),   13,   439. 
Emerson  v.  Coddington    (55   N.   Y. 

Super.  Ct.   336),   5o4. 
Emery  v.  Atlanta  R.  E.  Ex.   ( 88  Ga. 

321,  14  S.  E.  556),  587,  765. 
Emmons  v.  Alvord   (177  Mass.  466, 

59  N.  E.   126),  414. 
England  v.  Burnett  R.  E.,  etc.,  Co. 

(79  Mo.  App.  294),   290. 
Engle  V.  Johnson  (34  Ind.  App.  593, 

73  X.  E.  272),  409. 
Englerd  v.  White   (92  Iowa,  97,  60 

X.  W.  224),  352,  566. 


TABLE   OF    CASES. 


xlv 


[References  are   to   sections.] 


English   V.  Wm.  George  Realty  Co. 
([Tex.   C.    A.    '09]    117    S.    W. 

996),    13,    68,    142,    437,    543, 

557. 
Enoclis  V.  Paxton   (87  Miss.  C60,  44 

S.    14),   292,   557,   978. 
Enyeart   v.   Figard    (38   Pa.   Super. 

Ct.  488),  34. 
Ernst  V.  Loeb    (108  N.  Y.  S.  631), 

454. 
Esmond    v.    Kingsley    (3    N.    Y.   S. 

696),  454. 
Ettinger  v.  Weatherhead    (23   Ohio 

Cir.    Ct.    137),    18,   23,   24. 
Ettinghoff  V.  Herowitz  ( 100  N.  Y.  S. 

1002,   115   A.  D.  571),  15,   142, 

449. 
Evans  v.  Gay    (38  Tex.  C.  A.  442, 

74    S.    W.    575),    15,    22,    532, 

558,  782, 
Evans  v.  George    (80  111.  51),   805. 
Evans  v.  Rockett  ( 32  Pa.  Super.  Ct. 

365),  314. 
Evarts  v.  Fuqua    ([Tex.  C.  A.  '08] 

111    S.    W.    675,    affirmed    118 

S.  W.  132),  1064. 
Everett    v.    Farrell     (11    Ind.    App. 

185,  38  N.  E.  872),  292,  558. 
Ewart  v.  Young  (119  Mo.  App.  483, 

96  S.  W.  420),  379. 
Ewing  V.   Luna    ( [S.   D.   Sup.   '08] 

115  N.  W.  527),   14,  804,  929. 


Faber'v.   Vaughan    (108    III    App. 

553),  557. 
Pairchild  v.  Cunningham   (84  Minn. 

521,  88  N.  W.  15),  12,  112,  292, 

328,  557,  558. 
Fairchild   v.   McMahon    (139   N.   Y. 

290,    34    N.   E.    779),    42,    315, 

319. 
Fairmount    Cab   Co.  In  re    ( [Com. 

PI.]    9  Pa.  Co.  Ct.  201),   18. 
Faraday  Coal  &  Coke  Co.  v.  Owens 

(26   Ky.   L.   R.   243,   80   S.   W. 

1171),*15,  22,  89. 
Farland    v.    Boyum     ( [Wash.    Sup. 

'09]  102  P.  1088),  454,590. 


Farnsworth    v.    Hemmer     ( 1    Allen 

[Mass.]    494),   314. 
Farrar  v.  Brodt  (35  111.  App.  617), 

22. 
Farris  v.  Gilder    ([Tex.   C.  A.  '09] 

115   S.   W.   645),  41,  299,  313, 

&62a,  920. 
5ay    V.    Ryan    ([III.    Sup.    '09]    88 

N.  E.  974),  717. 
Fay  V.  Sullers    (15  Okla.  Sup.   171, 

81  P.  426),  17. 
Fay  V.  Winchester  (4  Mete.  [Mass.] 

513),   17,   18,  26,  333. 
Feather ston  v.  Trone   (82  Ark.  381, 

102  S.  W.    196),    15,   183,   290, 
Fedrick  v.  Rice   (13  Iowa,  214),  24. 

920. 
Feeter  v.  Heath   (11  Wend.  [N.  Y.] 

478),   307b. 
Feiner  v.  Kobre    (34  N.  Y.  S.  676, 

13  Misc.  499),   449. 
Feist  V.  Jerolomon    ( [N.  J.  Err.  & 

App.  '10]  75  A.  751),  525. 
Fellows  V.  Commissioners  ( 36  Barb. 

[N.   Y.]    655),   24. 
Felman  v.  O'Brien  (51  N.  Y.  S.  309, 

23  Misc.  341),   141,  444,  445. 
Felts  V.  Butcher   (93  Iowa,  414,  61 

N.  W.  991),  454. 
Fenn  v.  Ware   (100  Ga.  563,  28  S. 

E.  238),  454. 
Fenwick  v.  Bancroft  (56  Iowa,  627, 

9  N.  W.  367),  557. 
Fenwick  v.  Watkins    (25  Ky.  L.  R. 

1962,  79  S.  W.  214),  632a,  645. 
Ferguson  v.  Glaspie  (38  Minn.  418, 

38  N.  W.  352),  901. 
Ferguson   v.   Gooch    (94   Va.    1,   26 

S.  E.  397),  24,  37,  314. 
Fidelity    Ins.   Co.'s    App.     (161    Pa. 

St.  177,  28  A.  1070),  449,  450. 
Field  V.  Walford  ( 131  Mo.  App.  3»1, 

111  S.  W.  523).  1110. 
Fifth   Con.  Ch.  of  Wash.  v.  Bri-?ht 

(28  App.   [D.  C]   229),  353. 
Finch    V.    Guardian   Trust    Co.    (H2 

Mo.   App.  263),   557,   570,   889, 

890. 
Finch  Bros.  v.  Betz    (134  111.  App. 

471),  446. 


xlvi 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Finck  V.  Pierce   (103  N.  Y.  S.  7(55, 

55    Misc.   554),    250,    300,   572. 
Finck  V.   Riner    (81    X.  Y.    S.   025, 

40  Misc.  218),  533. 
Finck  V.  Schmidt   (9{3  N.  Y.  S.  197, 

48  Misc.  503),  234. 
Findlay    v.    Koch    (126    Iowa,    131, 

lai   X.  W.   706),  021. 
Finke  v.  Menke    (67   X,  Y.  S.  954, 

33  Misc.  769 ) ,  224,  454. 
Finlcy  v.  Dyer   (79  Mo.  App.  604), 

531,  557. 
Finley    v.    Hanley    (121    Mo.    App. 

358,  98  S.  W.  803 ) ,  590. 
Finnerty  v.  Fritz  (5  Colo.  174),  454, 

558. 
Firestone     v.     Firestone     (49     Ala. 

128 ) ,  35,  590. 
First   Bank   v.   Bissell    (2   MoCrary 

[U.  S.]  73),  35,  462. 
Fish   V.  Calvin    (6   X.  Y.    S.   64,   2 

Silver   [X.  Y.]   450),  1055. 
Fish  V.  Hodsdon   (16  X.  Y^.  S.  92), 

1091. 
Fisher   v.   Bell    (91   Ind.   243),   144, 

590. 
Fisher  v.  Dynes   (62  Ind.  348),  3-16. 
Fisher    v.    Staed   R.    Co.    (159    Mo. 

562,  62  S.  W.  443).  876. 
Fisher  v.  Stevens   (16  111.  397),  24. 
Fisher's  App.    (34  Pa.  St.  29),  131. 
Fisk  v.  Henarie   ( 13  Ore.  156,  9  P. 

322),  42,  454. 
Fisk   V.   Waite    ([Or.    Sup.   '09]    99 

P.  283),  37. 
Fiske    V.    Soule    (87    Cal.    313,    25 

P.    430),    454,    557,    670,    786, 

840. 
Fitch  on  R.  E.  Ag.,  58. 
Fittichauer  v.  Van  Wyck  (92  X.  Y. 

S.  241),  536. 
Fitzpatrick    v.    Gilson     (176    Mass. 

477,  57  X.  E.   1000),  533,  570. 
Fleet  V.  Barker   (104  X.  Y.  S.  940, 

120  A.  D.  455),  767. 
Flegel  V.   Dowling    ([Or.   Sup.   '09] 

102  P.  178),  18. 
Flemendorf    v.    Golden     (37    Wash. 

664,   80  P.   264),   444. 
Fleming  v.  Burke    (122   Iowa,  433, 

98  N.  W.  288),  18,  41,  307. 


Fleming  v.  Wells   ( [Colo.  Sup.  '09] 

iOl   P.  66),  745. 
Fletcher  v.  Dysart  ( 9  B.  Mon.  [Ky.] 

413),  24. 
Flood  V.  Leonard  (44  111.  App.  113), 

454. 
Flower   v.   Davidson    (44  Minn.  46, 

46  X.  W.  308),  54. 
Floyd   V.   Dowlin    ([Ore.   Sup.   '09] 

"  102  P.  178),  18. 
Flynn    v.    Jordal     (124    Iowa,    457, 

100   X.   W.   326),   40,   45,    117, 

488,  557,  621,  866,  995. 
Folger  v.  Mitchell   (3  Pick.  [Mass.] 

396),  24. 
Follansbee    v.    Kilbreath     (17     111. 

522  )i^  35* 
Follansbee    v.    O'Reilly    ( 13o    Mass. 

SO),  51,  290. 
Follansbee  v.  Sawyer    (30  X.  Y.  S. 

405,   157   X.   Y.    196,   51   X.  E. 

994),  33,  44,  57,  161,  488,  715, 

734,   749a,   833a. 
Follansbee  v.  Sawyer   (28  X.  Y.  S. 

698,  8  Misc.  370),  57. 
Folsom  v.   Hesse    (53  X.  Y.   S.   97, 

24  Misc.  713),  220. 
Folsom  V.  Lewis    (36  X.  Y.  S.  270, 

14  Misc.  605),  557. 
Foote  V.  Robbins   (50  Wash.  277,  97 

P.   103),   18,   76ya. 
Forbes  v.  Bushnell    (47   Minn.  402, 

50  X.  W.  368),  21. 
Ford   V.    Brown    (120   Cal.   551,  52 

P.  817),  482. 
Forrester-Duncan     Land       Oa..      v. 

Evatt   ([Ark.  Sup.  '09]   119  S. 

W.  282),  10. 
Forst  v.  Farmer    (46  X.  Y.  S.  903, 

21  Misc.  64),  545,  557. 
Fortran    v.    Stowers    ( [Tex.    C.    A. 

'08]    113  S.  W.  631),  443,  735, 

782,   887,   1047c. 
Fortran    v.    South    End    Land    Co. 

([Tex.    C.   A.    '07]    105    S.    W. 

323),  1052. 
Foss    Inv.    Co.   V.    Ater    (49    Wash. 

446,  95  P.  1017),  5,  18,  24. 
Foster    v.    Taylor    (44    Wash.    313, 

67  P.  358'),  456,  483. 


TABLE  OF  CASES. 


xlvii 


[References  are   to   sections.] 


Fouch  V.  Wflson    (59  Ind.  93),  23, 

24. 
Fowler    v.    Hoscher     ( 65    N.    Y.    S. 

638,  53  A.  D.  327),  12,  17. 
Fowler   v.   Quail    (36   Kan.   507,   13 

P.  784),  887a. 
Fox  V.  Byrnes  (52  N.  Y.  Super.  Ct. 

150)'  454. 
Fox  V.  Denargo  Land  Co.   (37  Colo. 

203,  86  P.  344),  85,  94,  95,  458, 

4<)4. 
Fox  V.  Ryan   (240  111.  391,  88  X.  E. 

974),  458,  557,  464,  1047d. 
Fox   V.   Starr    (106   111.   App.   273), 

557,  590. 
Fox    V.    Mackretli     (2    Brown    Ch. 

[Eng.]  400),  35. 
Francis  v.  Baker    (45  Minn.  83,  47 

N.  W.  452),  450. 
Francis  v.  Eddy   (49  Minn.  447,  52 

N.  W.  42),  17. 
Francisco  v.  Hatch    (117  Wis.  242, 

<)3  X.   W.   1118).  630. 
Frank  v.  Bonnevie  (20  Colo.  164,  77 

P.   363),  557,  570. 
Frank    v.    Conner     (107    X.    Y.    S. 

132),  313. 
Frank  v.  Levy   ( 10  Ohio  Cir.  Ct.  R. 

554),  40,'  314. 
Eraser  v.  Brown   (67  X.  Y.  S.  966, 

33  Misc.   591),   446. 
Eraser  v.  McPherson   (3  Desau.   [S. 

C]    393),   26,  266. 
Eraser  v.   Wychoflf    (63   X.   Y.   45), 

557. 
Erayner    v.    Morse     (55    Xeb.    595, 

'75  X.  W.  1103),  446. 
Ereedman  v.  Gordon    (4  Colo.  App. 

343,   35  P.  879),    153. 
Ereeland   v.   Hughes   (109  111.   App. 

73),    15. 
Freeman   v.   Polstein    (97   X.   Y.   S. 

1032),   49   Misc.   644),   41,  445. 
French   v.   McKay    ( 181   Mass.   485, 

63  X.  E.   1O08),   151,  446,  450, 

940. 
French's    Est.    (101    X.   Y.    S.    734, 

51   Misc.  457),  34,  456. 
Frenzer  v.  Lee   (  [Xeb.  Sup.  '02]  90 

X.  W.  914),  17,  446. 


Friar  v.   Smith    (120  Mich.  411,  79 

X.  W.  633),   51,  290,  977. 
Friedman  v.  Bittker   (   91  X.  Y.  S. 

896,  45  Misc.  178),  41. 
Friedman   v.  Havemeyer    (00  X.  Y. 

S.  97,  37  A.  D.  518),  141,  444, 
•     445,    447. 
Friedman    v.    Shuttle    ( [Ariz.    Sup. 

'06]  85  P.  726),  10. 
Friend  v.  Jetter    (43  X.  Y.  S.  287, 

19  Misc.  101;   41  X.  Y.  S.  560, 

18    Misc.    368),    454. 
Eriestedt   v.   Dietrich    (84   III.   App. 

604),  460. 
Frink  v.  Gilbert   ([Wash.  Fup.  '09] 

101    P.     1088),    445,    454,    557, 

581. 
Fritz  V.  Chicago,  G.  &  F.  Co.    (136 

Iowa,  699,  114  X.  W.  193),  755, 

834. 
Frost    V.    Houx    (15    Wyo.    353,   89 

P.  068),  557. 
Erye  v.  Schwartz    (87  X.  Y.  A.  D. 

611),  504. 
Frye  v.  Wakefield    (107  Minn.  291, 

120  X.  W.  35 ) .  1052a. 

Fryer   v.  Harker    (  [Iowa  Sup,  '09] 

121  X.  W.  526),  37. 

Fuller  V.  Brady   (22  111.  App.  174), 

22,  840. 
Eullerton  v.  Carpenter  ( 97  Mo.  App. 

197,  71  S.  W.  98),  533. 
Fulton   V.  Watters    (28   Pa.   Super, 

Ct.  269),  291,  314. 
Fulton  V.  Watters   (216  Pa.  St.  56, 

64  A.  860),  290,  320,  344. 
Eultz    V.     Weimer     (34    Kan.    576, 

9   P.   316),   22. 
Funk  V,  Latta    (43  Xeb.  739,  62  X. 

W.  65 ) ,  956. 
Eurlow   V.    Benoit    ([La.    Sup.    '09] 

50  S.  785),  557. 
Eusco  V.  Builowa   (40  X.  Y.  S.  076, 

17  Misc.  573),   209. 


Gage  V.  Gage  (30  X.  H.  420),  26. 
Gallacher    v.    Bell     (89    Minn,    291, 
93  X.  W.  867 ) ,  1055. 


xlviii 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Gamble  v.  Cleveland  CliflFs  Iron  Co. 
(158  Fed.  49,  99  C.  C.  A.  379), 

552. 
Gann    v.   Zetler    {3    Ga.    App.    589, 

■60  S.  E.   283),   314. 
Gareelon   v.   Tibbetts    <84   Me.    148, 

24  A.  797),  33,  57. 
Gardner      v.      Gardner      (5      Cush. 

[Mass.]    483),   74. 
Gardner  v.  Ogden  (22  N.  Y.  S.  327), 

290,   301,    345. 
Gardner    v.    Pierce    (116    N.    Y.    S. 

155),  15,  22,  33,   155,  454. 
Garth  v.  Davis   (27  Ky.  L.  R.  505, 

85  S.  W.  692),  30,  590. 
Catling  V.  Spar  Verein  (73  N.  Y.  S. 

7'65,  55  Misc.   554),  572. 
Gatling  v.  Spar  Verein   ( 73  N.  Y.  S. 

496,    67    A.    D.    50),    225,    250, 

458,  1071. 
Gaty  v.  Clark    (19  Mo.  App.   470), 

290. 
Gaty  v.  Clark    (26  Mo.  App.  332), 

577. 
Gaty  V.  Foster    (18  Mo.  App.  639), 

454. 
Gaty   V.   Sack    (19  Mo.   App.   470), 

'290. 
Gault  V.  Bradshaw    (48  Wash.  364, 

93  P.  534),  42. 
Gault  Lumber  Co.  v.  Pyles    (  [Okla. 

Sup.   '07]    92   P.   175),   18. 
Gaume   v.    Horgan    (122   Mo.    App. 

700,  99   S.  W.  457),   1040. 
Gauthier    v.    West    (45    3Iinn.    192, 

47  N.  W.  656),  533. 
Geery  v.  Pollock    (44  N.  Y.  S.  673, 

16  A.  D.  321),  51,  290,  m)0. 
Geiger   v.   Kiser    ([Colo.    Sup.   '10] 

107  P.  267 ) ,  428b, 446,  611.  612, 

716,  745,  836. 
Gelott  V.    Ridge    (117   Mo.   553,   23 

S.    W.    882),    24,    41,    57,    452, 

557,   731. 
Geoghegan  v.  Chatterton   (99  X.  Y. 

8.  702,   113  A.  D.  8.35),   1078c, 

1094. 
Gerding  v.  Tlaskin   (141  X.  Y.  514, 

36  X.  E.  601),  406,  863. 
Gerding  v.  Haskin  (21  X.  Y.  S.  636, 

2  Misc.   172),  930. 


Gerhart  v.  Peck  (42  Mo.  App.  644), 

42,  57,  533,  635. 
Gerrish  v.  Maher   (70  111.  470),  18. 
Gestring    v.    Fisher    (46    Mo.    App. 

603),  300. 
Getzelsohn   v.    Donnelly    (98   X.    Y. 

S.  213,  50  Misc.  164),  564,  625. 
G«tzler  v.  Boehm    (38  X.  Y.   S.  52, 

16  Misc.  390),  292,  447. 
Gibbons   v.   Shervs^in    (28   Xeb.    146, 

44  X.  W.  99),  454. 
Gibson    Est.    (3    Pa.   Dist.    147,    14 

Pa.     Co.     Ct.     241),    445,    446, 

449,  450. 
Gibson  v.  Gray   ( 17  Tex.  Civ.   App. 

646,   43  S.   W.   922),   118,   469. 
Gibson   v.   Hunt    ([Iowa   Sup.   '03] 

94   X.   W.  277),   446,   450,  454, 

761a. 
Gilbert  v.  Baxter   (71  Iowa,  327,  32 

X.  W.  364),  18,  53. 
Gilbert  v.  Coons   (37  111.  App.  448), 

42. 
Gilbert    v.   Judson    (85    Cal.    105), 

587. 
Gilchrist   v.   Clarke    (86   Tenn.  5S3, 

8  S.  W.  572),  23,  41,  517,  534, 

537. 
Gilder  v.  Davis    (137  X.  Y.  504,  33 

X.  E.  590),  297. 
Gillett  V.  Corum   (5  Kan.  608),  558, 

986. 
Gillett  V.  Corum   (7  Kan.  156),  15, 

444. 
Gillen  v.    Wise    (14   Daly,    480,    15 

X.  Y.  St.  367),  449. 
Gillespie  v.  Dick   ([Tex.  C.  A.  '08] 

111  S.  W.  664),  24. 
Gilmore    v.    Bailey    (103    111.    App. 

245),  113,  136. 
Gilmore  v.  Freshaur   ( 126  Mo.  App. 

299,   102  S.  W.  1107),  444. 
Gilmore  v.  Samuels   ( [Ky.  Ct.  App. 

'09]  123  S.  W.  271),  21. 
Girardieu  v.   Gibson    (122  Ga.  313, 

50  S.  E.   91),   143,  447,  5a0. 
Glade  v.   Ford    (131   Mt).  App.    164, 

111  S.  W.  135),  420. 
Glade  v.  Eastern  111.  Min.  Co.  ( 129 

Mo.  App.  443,  107  S.  W.  1002), 

317,  446,  464,  477. 


TABLE   OF    CASES. 


xlix 


[References  are  to  sections.] 


Glasscock    v.    Vanfleet     ( 100    Tenn. 

603,  46  S.  VV.  44!) ) ,  445,  489. 
Gleason    v.    McKay     (37    111.    App. 

464),  15. 
Gleason  v.  Nelson    ( 162  Mass.  245, 

58  N.  E.  497),  448. 
Glenn   v.    Davidson    (37    Md.   305), 

27,  445. 
Glentvvorth  v.  Luther  (21  Barb,  [N. 

Y.]     145),    3:17,    446,    449,    454. 
Glover    v.    Duffy     (112    N.    Y,    S. 

1099),  465. 
Glover  v.  Henderson    (120  Mo.  367, 

25  S.  W.  175),  15,  22,  454,  745, 

943. 
Glover   v.   Layton    (145   111.  92,   34 

N.  E.  53),  126,  565. 
Goad  V.  Hart    (128  Cal.   197,  60  P. 

7'61,  964),  29,  251. 
Gobin    V.    Phillips     ( 12    Ind.    App. 

629,  40  N.  E,  929),  630. 
Godley  v.  Haley    (27  Ohio  Cir.   Ct. 

6*00),  533.  " 
Goff  V.  Hurst    ( [Ky.  Ct.  App.  '09] 

122  S.  W.   148),  507,  558. 
Goffe  V.   Gibson    (18   Mo.  App.    1), 

446,  557. 
Goin   V.    Hess    (102    Iowa,    140,    71 

N.  W.  218),  47,  439,  558,  689, 

762,  784,  945. 
Going  V.  Cook   ( 1  Wash.  224,  23  P. 

412),  740. 
Gold   V.  Serrell    (26  N,  Y.   S.   5,   6 

Misc.  124),  61,  502,  544. 
Goldberg    v.    Gelles    (68    N.    Y.    S. 

400,  33  Misc.  797),  39,  454. 
Golden    Gate   Packing   Oo.    v.   Mine 

(55  C.al.  606),  13. 
Goldshear   v.   Barron    (85   N.   Y.  S. 

395,  42  Misc.   198),  28,  38,  51. 
Goldstein  v.  D'Arcy  (201  Mass.  312, 

87  N.  E.  584),  45'6,  775,  782. 
Goldstein    v.    Scott    (78    N.    Y.    S. 

730,  76  A.  D.   78),  587. 
Goldstein  v.  Walters  ( 15  Daly,  397. 

7  N.  Y.  S.  756,  8  N.  Y.  S.  957 ) , 

471. 
Goldsmitli    v.    Cook    (14    N.    Y.    S. 

■878,    Rev.    13    N.    Y.    S.    578), 

743. 


Goldsmith   v.   Cote    (80   S.    C.    341, 

61  S.  E.  555),  440,  446,  896. 
Good  V.  Smith    (44  Ore.  578,  70  P. 

354),   55. 
Goodell   V.   Woodruff    (20   III    191), 

24. 
Goodman  v.  Hess  (107  N.  Y.  S.  112, 

56   Misc.   482),   40,   313. 
Goodman   v.   Linsetzky    ( 107    N.   Y. 

S.  50),   184,  772,   1035. 
Goodmanson  v.  Rosenstein    (114  III. 

App.  243),  557. 
Goodson  V.  Embleton  ( 106  Mo.  App. 

77,  80  S.  W.  22),  454,  557,  505, 

944. 
Goodspeed  v.  Miller   (98  Minn.  457, 

108  N.  W.  817),  176,  455,  967. 
Goodspeed  v.  Robinson   ( 1  Hilt.  [N. 

Y.]  423),  17. 
Goodwin  v.  Brennecke   (47  N.  Y.  S. 

266,   21    A.   D.    138),   446,    449, 

450. 
Goodwin  v.  Sieman   ( 106  Minn.  368, 

118  N.  W.  1008),  499b. 
Gordon  v.  Rhodes   ([Tex.  C.  A.  '09] 

116  S.  W.  40),  607. 

Gordon  v.  Rhodes   ( [Tex.  C.  A.  '09] 

117  S.  W.  1023),  298,  607. 
Gorman  v.  Hargis   (0  Okla.  360,  50 

P.  92),  314,  320. 
Gorham    v.    Heiman    (90    Cal.    346, 

27  P.  289),  470. 
Gorman  v.  Scholle    (13  Daly,  516), 

531. 
Goss    V.    Broom     (31    Minn.    -184), 

18,  57. 
Gottschalk  v.  Jennings   ( 1  La.  Ann. 

5),  24. 
Gouge  V.  Hoyt    (127  Iowa,  340,  101 

X.  W.  463 ) ,  557. 
Gough   V.   Coffin    ([Tex.   C.   A.   '09] 

120   S.   W.   210).    547. 
Gough    V.    Loomis    ( 123    Iowa,    042, 

99  N.  W.  295),  40. 
Gould  V.  Ricard  ( 130  111.  App.  322), 

446. 
Goward  v.  Waters    (98   ilass.  596), 

557. 
Gower    v.    Andrew     (59    Cal.    119), 

203. 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Grade  v.  Stevens    (171   N.  Y.  658, 

63   N.   E.    1117),   889. 
Grant  v.   Ede    (85  Cal.   418,   24   P. 

890),  129. 
Grant  v.   Gold.   Ex.   Syn.    (1    Q.   B. 

233,  69  L.  J.  Q.  B.  [Eng.]  15:. ), 

40,  290,  401. 
Grant  v.  Hardy   (33  Wis.  668),  40, 

51,   710. 
Grasinger    v.    Lucas     (  [3.    D.    Sup. 

'0!)]   123  X.  W.  77),  314,  475. 
Graves   v.   Bains    (78   Texas  92,   14 

S.  W.  256),  24,  557. 
Graves   v.    Dill    (159    Mass.    74,   34 

X.  E.  336),  616,  930,  1015. 
Graves  v.  Horton   (38  Minn.  66,  35 

X.   W.   568),    18,    526. 
Gray  v.   Barge    (47   Minn.   498,   50 

X.  W.  1014),  387. 
Gray  v.   Carroll    ([Tex.  C.   A.   '07] 

105   S.   VV.    214),   446. 
Graves  v.  White    (43  Colo.   131,  95 

P.  347),  1086. 
Gt.  Western  Gold  Co.  v.  Chambers 

([Cal.    Sup.    '09]     101    P.    6), 

298,   321,   693b. 
Green   v.   Brady    (152   Ala.  507,   44 

S.  408),  774,   1038. 
Green   v.   Cole    (103   Mo.   70,   15   S. 

W.  317),  15,  16,  299. 
Green  v.  Hollingshead   (40  111.  App. 

195),  460,  557. 
Green  v.  Lucas    (33  L.  T.  R.  X.  S. 

[Eng.]    584),  533. 
Green    v.    Mules    (30    L.    J.    C.    P. 

[Eng.]    343),  587. 
Green   v.    Robertson    ( 64    Cal.    75 ) , 

475. 
Green   v.    Southern   S.   Lumber   Co. 

(141  Ala.  680,  37  S.  670),  970. 
Green  v.  Wright  (36  Mo.  App.  298), 

15,  558,  616,  891. 
Greenwald   v.   Rosen   (113  X^.  Y.  S. 

764,  61  Misc.  260),  454. 
Greenwood  v.  Burton   (27  Xeb.  808, 

44,  X    W.  28),  454. 
Greer  v.  Laws    (56  Ark.   37,   18   S. 

W.    1038),    868. 
Gregg  V.   Corey    (4   Cal.   App.   354, 

88  P.  282),  '>4,  858.     . 


Gregg  V.   Loomis    (22  Neb.   174,  34 

X.  W.  S55),  587,  876,  1070. 
Gregor  v.  McKee   (43  X.  Y.  S.  486, 

"l8  Misc.   613),  449. 
Gregory   v.   Bonney    ( 135   Cal.   589, 

67" P.  1038),  13,  42. 
Gregory    v.    Wilson     (36    X.    J.    L. 

315),  522. 
Gresham  v.  Connelly   (114  Ga.  906, 

41    S.  E.  42),  454. 
Grether  v.  McCormick  ( 79  Mo.  App. 

325),  369. 
Greve  v.  Coffin   ( 14  Minn.  345 ) ,  26. 
Gridley    v.    Bayless     (43    111.    App. 

503),    25. 
Grieb    v.    Koeffler     (127    Iowa    314, 

106  X.  W.   113),   106,  557. 
Griffith  V.  Daly    (56   X.  J.  L.  466, 

29  A.  169)',  21,  30,  605. 
Griffith  V.  Wol worth    (28  Xeb.  715, 

44  X.  W.   1137),  692,   779. 
Griffing  v.  Diller   (21  X.  Y.  S.  407), 

320. 
Griswold    v.    Pierce     (86    111.    App. 

406),  22,  557. 
Groeltz  v.  Armstrong  ( 125  Iowa  39, 

99  X.  W.  128),  38,  62,  328. 
Gross    V.    Schaffer    (29    Kan.    442), 

987. 
Grosse  v.  Cooley   (43  Minn.  188,  45 

X.   W.    15)*,  628,   732. 
Grosscup  V.  Downey    ( 105  Md.  273, 

65    A.    930),    39,    41,    196,   894, 

897,    1021,    1022. 
Grossman  v.  Cominez    ( 79  X.  Y.  S. 

900,  79  A.  D.  15),  600. 
Grumley  v.  Webb  (44  Mo.  444),  311. 
Guidetti  v.  Tuoti  ( 102  X,  Y.  S.  J  99, 

52  Misc.  657),  323. 
John  Gund  Brewing  Co.  v.  Tourte- 

lott    ([Minn.  Sup.  '09]    121   N. 

W,   417),  307. 
Gunn  v.  State  Bk.   (99  Cal.  349,  33 

P.   1105).  557. 
Guthman  v.  Meyer  (63  X.  Y.  S.  971, 

31  Misc.  810),  33,  34,  541. 
Guthrie    v.    Bright    (26    Ky.    L.    R. 

1021,  82  S.  W.  985),  557,  <!95. 
Gwinnup   v.   Sibert    ( 106   Mo.   App. 

709,   80   S.   W.   589),  454,  590, 

841. 


TABLE   OF    CASES. 


TReferences  are  to  sections.] 


Haase   v.    Schneider    (98    N.    Y.    S. 

587,    112    A.    D.   333),    17,    41, 

443,   465. 
Haekmari     v.     Gutweiler     (66     Mo. 

App.  244),  242. 
Hafner  v.  Herron   (60  111.  App.  592, 

Afl'd.    165   111.   242),   450. 
Hagler    v.    Ferguson    ( [Tex.    C.    A. 

'08]    HI    S.    W.   673),    18. 
Hague  V.  O'Connor   ( 1  Sweeney  [N. 

Y.]     472,    41    How.    Pr.    287), 

454. 
Hahl  V.  Wickes   (44  Tex.  C.  A.  70, 

97  S.  W.  838),  446. 
Haiiies  v.  Barney   (67  N.  Y.  S.  164, 

33  Misc.  748),  489. 

Haines    v.    Bigner    (9    Phila.    [Pa.] 

51),    446,    449,    450, 
Halderby    v.    Spofford     ( 1     Beavan 

[Eng.]   390),  26,  263. 
Hale  V.  Knapp    (134  Mich.  622,  96 

X.  W.  1060),  309. 
Hale   V.   Kumler    (85    Fed.    IGl,   29 

•C.   C.    A.   67,    172   U.    S.   046), 

427. 
Hall   V.   Gambrill    (92    Fed.   32,   34 

C.  C.  A.   190),   16,   17,   18,  314. 

572. 
Hall   V.   Grace    (179   Mass.   400,   60 

X.  E.  932),  741,  803a,  1054. 
Hall  V.  Kellogg  (42  Tex.  C.  A.  036, 

94  S.  W.  389),  314. 
Halliday    v.    McVVilliams    (76    Xeb. 

324,   107  X.  W.  578),  564. 
Hallock   V.    Hinckley    (19  Colo.   38, 

34  P.    479),   460. 
Halpriney  v.  Schachne   (54  X.  Y.  S. 

1103,  25  Misc.  797),  547. 
Halpriney   v.    Schachne    (57    X.   Y. 

S.  735,  27  Misc.  195),  531. 
Halsell   V.   Renfrew    (14   Okla.  674, 

78    P.    118).    18. 
Halsey  v.  Monteiro  (92  Va.  581,  24 

S'.  E.  258),  18,  24. 
Halteman   v.  Leining    (90  X.  Y.   S. 

1003,  45  Misc.  397),  08. 
Ham  V.  Webber   (43  X.  Y.  S.  1059, 

19  Misc.  485),  865. 


Hambleton    v.    Fort    (58   Xeb.    282, 

78  X.  W.  498),  446. 
Hamburger  v.  Thomas    (  [Tex.  C.  A. 

'09]    118  S.  W.  770),  458,  409, 

533,  557. 
Hamill    v.    Baumhover     (110    Iowa 

318,  81  X.  W.  600),  890,  908. 
Hamill  v.  American,  etc.,  Mtge.  Co. 

(127  Ala.  90,  28   S.  558),  566. 
Ham  Jin  v.  Schulte    (31  Minn.  486), 

547. 
Hamlin  v.   Schulte    (34   Minn.   534, 

27  X.  VV.  301),  39,  454. 
Hamilton  v.  Cutis    (6  Mackey    [D. 

C]    208),    18. 
Hamilton  v.  Frotliingham   ( 59  Mich. 

253,  26  X.  W.  486),  590. 
Hamilton    v.    Gillander    (49    X.    Y. 

S.  603,  26  A.  D.  156),  178,  444, 

446. 
Hammers  v.   Merrick    (42   Kan.  32, 

21  P.  783),  587,  1065. 
Hammond   v.    Bookwalter    ( 12    Ind. 

App.    177,  39   X.  E.   872),  405, 

558. 
Hammond    v.    Crawford     (66    Fed. 

425,  14  C.  C.  A.   109  K  547. 
Hammond     v.     Hannin     (21     Mich. 

374),  24. 
Hammond  v.  Mitchell    (61  111.  App. 

144),   712,   710. 
Hampton   v.   Lackens    ( 72   111.   App. 

442),    314. 
Hancock    v.   Byrne    (5   Dana    [Ky.] 

514),  22. 
Hancock    v.    Dodge    (85    Miss.    228, 

37   S.   711),   498,   590. 
Hancock  v.  Gomery    (58  Barb.    [N. 

Y.]   400),  384. 
Hancock  v.  Stacey   ([Tex.  Sup.  '10] 

125  S.  W.  884),  300,  416a. 
Hancock    v.    Stacey     ( [Tex.    C.    A. 

'09]    110  S.  W.   177),  454,  502, 

891. 
Hand   v.   Conger    (71   Wis.   292,   37 

X.    W.   235),   33. 
Hanesley   v.    Ba«ley    (109   Ga.   346, 

34  S.  E.  584 )  ^  224. 
Hanesley  v.   Monroe    (103   Ga.  279, 
29  S.  E.  928),  314,  709. 


lii 


TABLE   OF    CASES. 


[References  are   to  sections.] 


Hanford    v.    Shafter.   (4    Daly    [N. 

Y.]   243),  449,  450. 
Hann  v.  Brettler   (107  N.  Y.  S.  78), 

314. 
Hanna    v.    Espalla    (148    Ala.    313, 

42   S.   443),   57,   570,   59i6,   612, 

758,  782,  820,  821. 
Hanna   v.   Haynes    (42    Wash.   284, 

84  P.  861),  23,  321,  708, 
Hannon  v.  Prentiss  (124  Mich.  417, 

83  N.  W.  102),  10,  290,  706. 
Hannon    v.    Mbran    (71    Mich.   261, 

38  N.  W.  909),  563. 
Hanrahan   v.  Ulrich    ( 107   111.  App. 

626),  557. 
Hansbrough    v.   Neal    (94   Va.   722, 

27  S.  E.  593),  39,  626. 
Hansen    v.    Williams    ( [Tex.    C.    A. 

'08]   113  S.  W.  312),  984a. 
Hapwood   V.  Corbin    (63  Iowa  218, 

18  N.  W.  911),  49. 
Hardacre  v.  Stewart  (5  Esp.  [Eng.] 

103),  315. 
Hardeman  v.  Ford   ( 12  Ga.  205),  24. 
Hardinger  v.   Columbia    (50   W'ash. 

405,  97   P.  445),   18,  618a. 
Harkness  v.   Briscoe    (47   Mo.   App. 

196),  346. 
Harlow  v.  Bartlett   (170  Mass.  584, 

49  N.  E.    1014),  271,  349,  403. 
Harmon  v.  Enright   ( 107   Mo.  App. 

560,  81  ,S.  W.   1180),  458,  404, 

557. 
Harper  v.   Goodall    (10   Abb.   N.   C. 

161,  62  How.  Pr.  [N.  Y.]  288), 

39,    714. 
Harper    v.    Hampton     ( 1    Harr.    & 

J.  [Md.]   622),  43. 
Harper  v.  Nat.  Bk.   (54  0.  S.  425), 

601. 
Harrell  v.   Bonfils  Imp.  Co.    (45  N. 

Y.  S.  227,  17  A.  D.  405),  678. 
Harrell  v.  Vieth   (13  N.  Y.  St.  738), 

39,   712,   714. 
Harrell  v.  Zimpleman   (66  Tex.  292, 
17    S.    W.    478),    42,    513,    615, 

626. 
Harris  v.  Boertnell   (2  Daly  [N.  Y.] 

189),    17,    446. 
Harris  v.  Moore  (134  Iowa  704,  112 
N.   W.    163),   696,   727. 


Harris  v.  Moore  ( 134  Iowa  704,  112 

N.  W.  63),  727. 
Harris  v.  Reynolds  ( [N.  D.  '07]  114 

N.   W.   369),   24,   443. 
Harris    v.    Rogers     ( 15    N.    Y.    St, 

396),  558. 
Harrison     v.     Angerson      (115     III. 

App.   226),    15,  454. 
Harrison  v.   Craven    ( 188   Mo.  390; 

87  S.  W.  962),  35,  282,  300. 
Harrison   v.   Houston    ( [Tex.   C.  A. 

'06]  91  S.  W.  647),  1007. 
Harrison  v.  Lakeman  (189  Mo.  581, 

88  S.    W.   53),   290,    314,   630, 
'642,  964,  965,  966. 

Harrison  v.  Long   (4  Desau.  [S.  C] 

110),   12,  322,  328. 
Harrison  v.  McHenry    (9  Ga.   164), 

290. 
Harrison  V.  Pusterski   (97  Iowa  166, 

66  N.  W.  93),  712,  941. 
Harrison   Nat.    Bk.    v.    Austin    (65 

Neb.   632,  89  N.  W.  245),  256. 
Ha'rshaw    v.    McKesson    ( 65    N.    C. 

688),  43,  57,  364. 
Hart  V.  Maloney   (80  N.  Y.  S.  293, 

80   A.   D.   2d5),    12. 
Harten  v.  Loffler    (31   App.   [D.  C] 

362),    105,   290,   295,   475,   578, 

1046a. 
Hartford    Fire   Ins.    Co.    v.    Wiloox 

(57  111.  180),  26. 
Hartford  v.  McGillicuddy   (103  Me. 

224,   68    A.    860),    14,    37,    454, 

628. 
Hartley   v.    Anderson    ( 150   Pa.   St. 

391,  24  A.  675),  7,  558. 
Hartman  v.  Warner   (75  Conn.  197, 

52  A.  719),  300,  513,  616,  1013. 
Harvey  v.   Hamilton    (155   111.  377, 

40  N.  E.  592),  557. 
Harvey  v.  Lindsey    (117  Mich.  267, 

75  N.  W.  627 ) ,  320,  740. 
Harwood   v.    Diemer    (41    Mo.   App. 

48),  436. 
Haskell  v.  Beeghly  ([Kan.  Sup.  '08] 

96  P.   134),  1060. 
Haskins   v.    Fogg    (60   N.   H.   402), 

557. 
Haskins  v.  Lewis   (30  Ohio  Cir.  Ct. 

603),   454. 


TABLE   OF    CASES. 


liii 


[References  are  to  sections.] 


Hatch  V.  Coddington  (95  N.  S.  56), 

15. 
Hattenback    v.    Gundersheimer     (13 

N.  Y.  S.  814),  531. 
Haug  V.  Hangan   (51  Minn.  558,  53 

N.  VV.  874),  450,  83(3. 
Hausman   v.   Herdfelder    (80   N.   Y. 

«.   1039,  81   A.  D.  46),  451. 
Haven  v.  Tartar  ( 124  Mo.  App.  691, 
102    S.    W.    21),    25,    42,    290, 

316,  317,   482. 
Haviland  v.  Price  (2Q  N.  Y.  S.  757, 

6  Misc.  372),  51,  290,  475,  557. 
Hawes   v.   Burkholz    (114   X.   Y.   S. 

765),  299,   300. 
Hawkins    v.     Chandler     (8     Houst. 

[Del.]    434,    32    A.    464),    446, 

557,  615. 
Hawkins  v.  Sanger  ( 22  Minn.  557 ) , 

24. 
Hawley  v.  Maddocks  (25  Wash.  297, 

65  P.  544),   783b. 
Hay  V.  Piatt    (66  Hun,  488,  21   N. 

Y.  S.  362),   17,  292,  446. 
Hayden    v.    Grille     (26    Mo.    App. 

289),  557. 
Hayden    v.    Grille     (35    Mo.    App. 

647),  291,  454. 
Haydoek  v.  Stowe   (40  N.  Y.  363), 

26,    328. 
Haygood  v.  Parrish    (157  Ala.  584, 

47  S.  1015),  15. 
Haynes  v.  Fraser   (78  N.  Y.  S.  794, 

76  A.  D.  627),  208. 
Healey  v.  Martin   (68  N.  Y.  S.  413, 

33   Misc.   23()).   314. 
Heaton    v.   Clarke    (122    Iowa    716, 

98  N.  VV.  597),  454. 
Heaton  v.  Edwards    (90  Mich.  500, 

51  N.  W.  544),  15. 
Hecht  V.  Hall    (62   111.   App.   100), 

454. 
Heckseher    v.    Blinton     ( [Va.    Sup. 

'10]    66  S.    E.   859),   414a. 
Heddon   v.   Sheplierd    (29   N.   J.   L. 

334),  454. 
Hedenberg    v.    Soeltarj^er     (140    111. 

App.  618).  626. 
Heenan  v.  Harris  ([Mich.  Sup.  '09] 

121  N.  W.  741),  447 


Hefferman  v.  Botteler   (87  Mo.  App'. 

316),   255,  355. 
Hege  V.  Hessell    ([Wash.   Sup.  '10] 

107  P.  375),  464. 
Hegman  v.  Hood    (3  Ind.  App.  456, 

29  X.  E.  1141),  955. 
Heinrich  v.  Kern    (4  Daly   [X'.  Y.] 

74),  460,  557. 
Heintz   v.   Boehmer    (4   Ohio   X.   P. 

226,   6    Ohio   S.   &   C.    P.    362), 

557. 
Helberg  v.  Nichol    (149  111.  249,  37 

N.   E.  63),  414. 
Helling  v.  Darby    (71   Kan.   107,  79 

P.   1073),  15,  142. 
Hemstreet  v.  Burdick  (90  HI.  444), 

26,   328. 
Henderson   v.  Collins    (69   Iowa  51, 

28  X.  W.  431),  449,  450. 
Henderson    v.    Cummings     (44    111. 

325),  24. 
Henderson   v.    Mace    (64    Mo.   App. 

303),  532. 
Henderson    v.    Sonnebaum     ( 30    Pa. 

Super.  Ct.  182),  443,  1001. 
Henderson  v.  Vincent    (84  Ala.  !)9, 

4  S.  180),  412. 
Hendricks  v.  Daniels    (19   X.  Y.  S. 

414),  141,  44^ 
Henesley   v.   Bagley    (109    Ga.   346, 

34  S.  E.  584),  224. 
Henker  v.   Schwicker    (73   X.   Y.   S. 

656,   67    A.    D.    196),   269,   273, 

314,    1051. 
Henkel  v.  Dunn    (97  Mo.  App.  671, 

71  S.  W.  735),  447. 
Henning    v.    Burch     (90    Minn.    43, 

95  X.  W.  528),  557. 
Henninger  v.   Burch    ( 90   Minn.   43, 

95  X.  W.  578),  557,  864. 
Hennings  v.  Parsons   ( 108  Va.  1,  61 

S.  E.  866),  439,  518. 
Henry   v.    Mayer    (6    Ariz.    103.   53 

P.  590),  315. 
Henry    &    Sons    Oo.    v.    Colo.    F.    & 

L.  S.  Co.    (164  Fed.   986),  299. 
Henry  v.  Stewart   (185   111.  -448,  57 

X.   E.   190),  446,   450,  532. 
Henshaw    v.    Wilson    (46    HI.    App. 

364),   414,   950. 


liv 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Herman   v.    Fisher    (82   Mich.   208, 

46  N.  W.  225),  85,  558. 
Herron  v.  Herron   (71  Iowa  428,  32 

N.  W.  407),  41G. 
Hersel   v.   Witt    (134   Wis.    55,    113 

N.  W.  1093),  181. 
Hersher    v.    Wells     (103    III.    App. 

418),    153,    158,    159,    189,    190, 

4{54. 
Hersey  v.  Lambert    (50  Minn.   373, 

52  N.  W.  963),  26,  57. 
Herweg  v.  MoUitor    (110   N.  Y.  S. 

241,   126  A.   D.   927),   830. 
Herwig  v.  Richardson  ( 44  La.  Ann. 

703,   11   S.   135),  279,  280. 
Hess  V.  Bloch    (107  X.  Y.  S.  8G,  56 

Misc.   Rep.    480),    33. 
Hess    V.   Gallagher    (117    N.   Y.    S. 

■900).   389,   400. 
Hess  V.  Eggers    (78  X.  Y.  S.   1119, 

38  Misc.  726),  223,  570. 
Hetzler    v.    Morrell    (82    Iowa    562, 

48  X.  W.  938),  313,  462. 
Hewitt   V.   Brown    (21   Minn.    163), 

57,    161. 
Hewitt  V.  Young   (82  Iowa  224,  47 

N.  W.   1084),  314. 
Hicks  V.  Post    (154   Cal.  22,  96  P. 

878),    584,   §107. 
Hickman-Coleman     Co.     v.     Leggett 

([Cal.  App.  '09]   100  P.  1072), 

34,  687a. 
Higgins    V.    Miller     (109    Ky.    209. 

58  S.  W.  580).  445,  446. 
Higginson   v.   Fabre    (3   Desau.    [S. 

C]    89),  466. 
Hildenbrand  v.  Lilies  ( 10  Colo.  App. 

522,  51  P.  1008),  85. 
Hill  V.  Jeff   ( 55  Ark.  574,  18  S.  W. 

1047),  558. 
Hill    V.    McCoy    (1    Cal.    App.    159, 

81    P.    1015),    57,    550,    557. 
Hill   V.    Wheeler    (2   Ga.    App.   349, 

58  S.  E.  502).  917,  921. 
Hind  V.  Henry    (36  X.  J.   L.  328), 

54. 
Hindricks  v.  Brady    (20  S.  D.  590, 

108  X.  W.  332),  270,  349. 
Hindricks    v.    Brady    ( [S.    D.    Pup. 

'09]  121  X.  W."777),  270a,  300, 

349. 


Hinds    V.    Mclntyre    (89    111.    App, 

611),   934. 
Hinton  v.  Coleman  (76  Wis.  221,  45 

X.   W.   26),   320. 
Hippie  V.   Laird    (189  Pa.   Pt.   472, 

42  A.  46),  460. 
Hoadley  v.   Danbury    Sav.   Bk.    ( 7 1 

Conn.  599,  42  A.  667 ) ,  446,  743. 
Hobart  v.  Sherburne  (&6  Minn.  171, 

68  X.   W.   841),  290,  291,   314, 

320,  558. 
Hobart   v.   Stewart    (99   Minn.   394, 

109  X.  W.  704),  275. 
Hobbs  V.  Edgar   (51  X.  Y.  S.  1120, 

23  Misc.  618),  502. 
Hobbs  V.  Miller  (14  Ky.  L.  R.  719), 

446,   1047a. 
Hochbaum  v.  Potter    (101  X.  Y.  S. 

531),  39. 
Hodge  V.   Appellees    (107   X.   Y.   S. 

170,    122    App.    Div.    437),    15, 

142,  449. 
Hodgkins  v.  Mead  (8  X.  Y.  S.  854), 

54,   740. 
Hoeflingv.  Hambleton  (84  Tex,  517, 

19    S.   W.   689),   423,   451,  627, 

885. 
Hoffner  v.   Chambers    (121   Pa.   St. 

84,  15  A.  492),  1009a. 
Hogan  V.   Slade    (98   Mo.   App.   44, 

71   S.   W.   1104),   445,  446. 
Holbrook  v.  Inv.  Co.    (30  Ore.   259, 

47  P.  920),  482. 
Holbrook    v.     McCarthy     (61     Cal. 

216),    134, 
Holbrook-Blackwell,      etc.,     Co.      v. 

Hartman    (128    Mo.   App.    228, 
Holcomb    V.    Stafford     (102    Minn. 

233,  113  X.  W.  449),  482. 
Holden   v.   Starks    (159   Mass.   503, 

34   X.   E.    1069),    17,    557. 
Holland  v.  Howard    (105   Ala.   538, 

17   S.  35),   449,  450,    1055. 
Holland   v.   Vimon    ( 124   Mo.   App. 

417,   101   S.  W.   1131),  61. 
Holley    V.    Townsend     (2    Hilt.    [X, 

Y.]    34),    292,   444,    558. 
Holies   V.    Weston    (156    Mass.    357, 

31    X.   E.  483),   513,  615,  811. 
Holliday  v.  Roxbury  Dis.  Co.    (115 

X.'y.  S.  383),"  242a. 


TABLE   OF    CASES. 


Iv; 


[References  are   to   sections.] 


Holly   V.   Gosling    (3   E.   D.   Smith 

[N.  Y.]),  533. 
Hollyday    v.    Southern    Farm     Ag. 

(100  Md.  294,  59  A.  '64G),  507. 
Holmes  v.  Cathcart   (88  Minn.  213, 

92  N.  W.  956),  412a. 
Holschien   v.   Fehleg    (55   Mo.  App. 

375),   1054. 
Holt  V,  Schneider   (57  Neb.  523,  77 

N.  W.  1080),  256. 
Holtzman  v.   Linton    (27    App.    [D. 

C]   241),  57,  314. 

106  S.  W.  1115),  18,  110. 
Holtzman  v.  U.  S.   (14  App.  [D.  €.] 

454),  591. 
Hopkins  V.  Everly  (150  Pa.  St.  117, 

24,    A.    624),    17,    18,    560. 
Hopkins  v.  Moseley    (31   Ky.  L.   R. 

1308,  105  S.  W.  104),  446,  630. 
Hopwood   V.  Corbin    (63   Iowa   218, 

18  N.  W.  911),  49. 
Home   V.   Ingraham    (125    111.    198, 

16  N.  E.  868),  388. 
Horton  v.  Innman    (145  Mich.  438, 

108  N.  W.  746),  14. 
Horwitz  V.  Pepper   (128  Mich.  688, 

87   N.  W.   1034),  51,  290,  888. 
Hosmer   v.    Fuller    (168   Mass.   274, 

47  N.  E.  94),  896. 
Hotchkiss  V.  Kuehler    (83  N.  Y.  S. 

710,  86  A.  D.  265),  24.6. 
Hough    V.    Baldwin     (99    N.    Y.    S. 

545,  50  Misc.  546),  21,  97,  140, 

174,   187,  788,  838. 
Hough    V.    Baldwin    (103    X.    Y.   S. 

133,  53  Misp.  284).  85. 
Houston   V.   Bogni,   McGloin    (  [La.] 

164),    -154,    576,   590. 
Hovey  v.  Aaron   (133  Mo.  App.  573, 

il3  S.  W.  718),  291,  454. 
Howe  V.  Miller   (23  Ky.  L.  R.  1610, 

'66  S.  W.  184),  618. 
Howe  V.  Werner   (7  Colo.  App.  530, 

44  P.  511).  454. 
Howie  V.  Bratrud   (14  S.  D.  648,  80 

N.  W.  747),  1060. 
Howie   V.    Bratrud    (14    S.    D.   330, 

89  X.  \V.  651),  557. 
Howell  V.  Denton   (  [Tex.  C.  A.  '08  ] 

113  S.  W.  314),  783,  879a. 


Hoyle  ".  Johnson   (18  Okla.  330,  89 

P.   1119),   1100. 
Hoyt  V.  Shipherd   (70  111.  309).  122, 

458. 
Hoyt  V.  Tuxbury    (70  111.  331),  24. 
Hubacheek    v.    Hazard     (83    Minn. 

437,   86   X.    W.   426),   61,   446, 

502,  557. 
Hubbard    v.    Elmer    (7    Wend.    [X. 

Y.]   446),  330. 
Hubbard  v.  Leiter    (145  Mich.  387, 

108  X.  W.  735),  454,  557. 
Hobbs  V.  Edgar   (51  X.  Y.  S.   1120, 

23  Misc.  618),  61,  502. 
Hudson  V.  Scott   (125  Ala.    172,  28 

S.  91),  62. 
Huff  V.  Cole    (127  Mich.  351,  86  X. 

W.  835),   735. 
Huff   V.    Hardwick    (19   Oolo.   App. 

416,  75  P.  593),  495,  590,  754. 
Huffner   v.  Ellis    (64   Xeb.   623,   90 

X.  W.  552),  15. 
Hugill  V.  Weekly    (64  W.   Va.  210, 

61  S.  E.  360),  451,  458. 
Huggins   V.   Hearne    ( 74    Mo.    App. 

86),  557. 
Hughes  V.  McCullough  ( 39  Ore.  372, 

65  P.  85),  932,  946. 
Hughes  V.  Washington  (72  111.  84), 

314,   319. 
Hull  V.  Cardwell    (2  X.  Y.  City  R. 

76),    196. 
Hull  V.  Harper   (17  111.  82),  24. 
Hume  V.   Flint    (11   X.  Y.  S.  43i), 

1044a. 
Humphries   &   J.   v.    Smith    (5   Ga. 

App.    340,    63    S.    E.    248),    20, 

454. 
Hungerford     v.     Hicks     (39    Conn. 

259),  42,  133. 
Hunn  V.  Ashton   (121  Iowa,  205.  98 

X.  W.  745),  41,  381,  446,   743. 
Hunt  V.  Jones    (105  Mo.   App.   106, 

79  S.  W.  486),  24,  557. 
Hunt  V.  Ronamanier   (8  Wheat.  [U. 

S.]    174).    16. 
Hunt  V.  Tuttle    (133  Iowa  647,  110 

N.  W.  1026).  32,  597,  725. 
Iluntemer  v.  Arent    (1(5   S.  D.  465, 

93  X.   W.  053),   454,  478,  533- 


Ivi 


TABLE   OF   CASES. 


[References  are   to   sections.] 


Hunter  v.  Wenatchie  Land  Co.   (50 

Wis.  4^8,  97  P.  494),   13,  563. 
Hunton   v.  Marshall    (76   Ark.  375, 

88  S.  W.  963 ) ,  446. 
Huntoon   v.   Lloyd    (8   Mont.   283), 

809a. 
Hurd    V.   Lee    (116   N.   Y.   S.   445), 

39. 
Hurst   V.   Williams    (31    Ky.   L.   R. 

658,  102  S.  W.   1176),  14,  727, 

884,  926,   1080. 
Hurtsook    V.    Chrissman    (114    Mo. 

App.  558,  90  S.  W.   116),  658. 
Hutchinson  v.  Hutchinson  (4  Desau. 

[S.  €.]   77),  35,  402. 
Hutchins   v.   Werheimer    (51   Wash. 

539,  99  P.  577),   18,  24. 
Hutter    V.    Kuhner    (121    N.    Y.    S. 

210),    33. 
Hutton    V.    Renner     (74    111.    App. 

124),  454. 
Hutts  V.  Slough    (157  Ala.  566,  47 

S.   1031),   10,   465. 
Hyams  v.  Miller  (71  Ga.  608),  449. 


Ice  V.   Maxwell    (61    W.  Va.   9,   55 

S.    E.    899),    14,    18.    24,    560, 

628,  919. 
Hlinois,  State  of,  590. 
Hlingsworth  v.  Slosson  (19  111.  App. 

612),   226. 
Imperato   v.   Washoe    (93   N.   Y.   S. 

489,  47  Misc.  387).  564. 
Indian    Fruit   Co.   v.   Sandlein    (125 

Ga.  222,  54  S.  E.  65),  446,  557. 

740 
Indiana.  State  of,  590. 
Indiana   &    Ark.   L.   &   Mfg.   Co.   v. 

Pharr     (82    Ark.    573,    102    S. 

W.   686).   90. 
Indiana    Bermudez    Asphalt    Co.    v. 

Robinson    (29  Ind.  App.  59,  63 

N.  E.  797),  39,  454. 
Ingham   v.   Ryan    ( [Cal.   App.   '03] 

71    P.  899),  34. 
Ingold    V.    Symonds    ( 125    Iowa   82, 

99  N.  W.  713),  13. 


Ingold  V.  Symonds    ( 134  Iowa  206, 

111  N.  W.  802),  30,  563. 
Innes    v.    Bogen     (41    (.olo.    9,    91 

P.   1108),  457. 
Inslee  v.  Jones  (Brightly  [Pa.]  76), 

446,  449,  450,  616,  626. 
Investment   Co.   v.  Ater    {4Q  Wash. 

446,  95   P.   1017),   38. 
Iowa  Land  Co.  v.  Schoenewe  ( [Iowa 

Sup.  '05]   102  N.  W.  817),  643. 
Irwin    V.    Mowbray     (5    N.    Y.    S. 

430),   464. 
Ispherding  v.   Wolf    (36   Ind.  App. 

250,    75   N.    E.    598),    39,    557, 

564. 
Israels  v.  McDonald    (107  N.  Y.  S. 

826,  123  A.  D.  63),  770. 
Ivy  Coal  Co.  v.  Long  ( 139  Ala.  535, 

36  S.  722),  546,  590,  816,  817. 


Jackson     v.     Carrick      (25     Weekly 

Notes    €as.     [Pa.]     132),    557, 

561. 
Jackson  v.  Higgins    ( 70  N.  H.  637, 

49   A.   674),    740. 
Jackson  v.  Hough    (38  W.  Va.  236, 

18  S.  E.  575),  576. 
Jackson  v.   Parrish    ( 157   Ala.  584, 

47   S.    1014),    15. 
Jackson    v.    Stephenson     (  [Tex.    C. 

A.   '08]    114   S.  W.  84«),   934b, 

1076a. 
Jacob   V.   Buchanan    ( 1 1    Ky.   L.  R. 

861),   557. 
Jacobs   V.   Shenon    (3   Ida.   274,   29 

P.  44),  632a. 
Jacobson   v.  Fraadc    (107   N.   Y.   S. 

706,   56   Misc.   631),    1036. 
Jacobson      v.      Hendricks      ( [Conn. 

Sup.  '10]  75  A.  85).  570. 
Jacquett,  Appeal  of.   (3  Walk.  [Pa.] 

13),  443. 
Jadwin    v.   Hurley    ( 10   Pa.   Super. 

Ct.    104^.    576. 
Jaeger  v.  Glover    (8!)  Minn.  490,  95 

N.  W.  311),  557. 
James'    Appeal,     (80    Pa.    St.    54), 

285. 


TABLE   OF    CASES. 


Ivii 


[References  are   to   sections.] 


Jamison  v.  Hutchison    ( [Tex.  C.  A. 

'08]     109    S.    W.    1096),    1045, 

104<3. 
Jamison  v.  Hyde   (141  Cal.   109,  74 

P.  695),  668,  699. 
Janks  V.  Nobles    (42   111.  App.  33), 

424,    444,    445,    446. 
Jansen  v.   Williams    (36   Neb.   869, 

55   N.   W.   279),   51,   290,   558, 

709,  710. 
Jarvis  v.  Schaefer    (105  N.  Y.  289, 

11  N.  E.  634),  39,  320,-475. 
Jasper  v.  Wilson  ( [N.  M.  Sup.  '08) 

94    P.    951),    17,   328. 
Jaupel  V.  Gold    (106  N.  Y.  S.  891, 

122   A.   D.   401),   570. 
Jayne   v.   Drake    ( [Miss.    Sup.    '06] 

41   S.    372),    15,   22. 
Jefferson  v.  Burham    (85   Fed.  949, 

29  C.  C.  A.  481),  809. 
Jeff  ray    v.    Hurst     (49    Mich.    31), 

26,   263. 
Jeffries   v.    Robbins    (66    Kan.   427, 

71  P.  852),  291,  314. 
Jeffries    v.    Loving    ( 106    111.    App. 

380),   557. 
Jemoney    v.    Tallman     (40    N.    Y. 

Super.  Ct.  436),  896. 
Jenkins  v.  Funk   (33  Fed.  915),  11. 
Jenkins    v.    Hollingsworth    (83    111. 

App.    139),   449,   460,   488,  533. 
Jennings  v.  Rooney  ( 183  Mass.  577, 

67  N.  E.  665)',  740. 
Jennings  v.  Truninier    (52  Ore.   149, 

96  P.  874),  445,  446,  454,  581. 

608,  928. 
.lepson  V.  Marohn   (  |  S.  D.  Sup.  '09] 

119  N.  W.  988),  53. 
Jesson  V.  Texas  L.  &   Loan  Co.    (3 

Tex.  {".  A.  25,  21   S.   W.  624), 

237,    564,    738. 
Jardy  v.  Salmon,  B.  &  L.  Co.    (121 

La.  457,  46  S.  572),  649a. 
Joffe  V.  Naglo   (114  N.  Y.  S.  905), 

M:4.   744,   755. 
Johnson    v.    Bernlieimer    ( 19    N.    Y. 

S.    37).    446. 
Johnson  v.    Buchanan    (  [Tex.   C.   A. 

'09]    116   S.   W.   875),    13,  299, 

800,  732. 


Johnson    v.    Dodge     (17    111.    433), 

18. 
Johnson  v.  Fecht    (185  Mo.  335,  83 

S.  W.  1077),  17,   18,  24. 
Johnson   v.    Hayward    ( 77   Neb.   35, 

107  N.   W.*384),  578. 
Johnson  v.  Huber   (  [Kan.  Sup.  '09] 

103  P.  99),  18,  374a. 
Johnson    v.    Hulings     ( 103    Pa.    St. 

498),  558,  576. 
Johnson    v.    Leman     (131    III.    009, 

23  N.  E.  435),  35,  288. 
Johnson  v.  Lord    (54  N.  Y.  S.  923, 

35  A.  D.  325),  446. 
Johnson  v.  Seidl    (150  Pa.  St.  396, 

24  A.    687),    448. 

Johnson   v.    Sirret    (153   N.    Y.   51, 

46  N.  E.  1035),  116. 
Johnson  v.  Suton   ( [Miss.  Sup.  '09 J 

49   S.   970),   534,   557. 
Johnson  v.  Va.   &  Car  Lumber  Co. 

(163  Fed.  249,  89  CCA.  632), 

511,  587. 
Johnson  v.   Whalen    (13   Okla.   320, 

74   P.   503),    12,   17. 
Johnson   v.    Wright    ( 124    Iowa    61, 

99  N.  W.  103),  42,  80,  81,  840. 
Jones  on  Mortgages,  265. 
Jones   V.  Adler    (34  Md.   440),  449, 

450. 
Jones  V.  Berry   (37  Mo.  App.  125), 

15,   449,   450. 
Jones   V.   Brand    (106   Ky.    410,   50 

S.  W.  679),  392,  395. 
Jones  V.  Buck   ( [Iowa  Sup.  '09]  120 

N.  W.  112),  447,  464. 
Jones  V.  Eilenfeldt    (28  Wash.  687, 

69   P.   368),   549. 
Jones  V.   Henry    (a.'j   N.   Y.   S.   483, 

15  Misc.  151),  40,  532. 
Jones  V.  Holladay   (2  App.  Cas.  [D. 

C]   279),   18,  557. 
Jones  V.  Howard    (234   111.   404,  84 

N.    E.    1041),    18. 
Jones    V.   Jones    ( [Wash.    Sup.    '09] 

104  P.  786),   1119. 

Jones  V.  Pendleton  (134  Mich.  460, 
96  N.  W.  574),  638,   1069. 

Jones  V.  Stevens  (36  Neb.  849,  55 
N.  W.   251),  454. 


IVlll 


TABLE   or    CASES. 


[References  are  to  sections.] 


Jordan   v.   Longhenry    ([Iowa   Sup. 

'09]    123  N.  W.*956),   113. 
Jungblut  V.   Gindra    (118  N.   Y,  S. 

94'2),   291,   446. 


Kaestner  v.  Oldham    (102  111.  App. 

372),   282. 
Kahn  v.  Verschleiser   (109  N.  Y.  S. 

663,  57  Misc.  381).  054. 
Kalkstein  v.  Jackson   ( 1 16  N.  Y.  S. 

302),   716. 
Kellbom  v.  Lipp   (20  111.  App.  414), 

314. 
Kane    v.    Dawson     (52    Wash.    411, 

100   P.   837),   392b,  516. 
Karoff  V.  Dreyer   ( 103  X.  Y.  S.  962, 

119  App.'Div.  134),  292. 
Kauffman  v.  Bailie   (46  Wash.  248, 

89   P.   548),   23,  300. 
Kavanaugh   v.   Ballard    (21   Ky.  L. 

R.    1683,    56    S.    W.    159),    15, 

557,  558. 
Keam    v.    Turner     (21    Tex.    C.    A. 

417,  52   S.   W.    1043),   33. 
Keating   v.  Haley    (147   Mich.   279, 

110  X.  W.  943),   193,  458. 
Keeler  v.  Grace   (27  111.  App.  427), 

449,  450. 
Keener  v.   Harrod    (2   Md.  (53),   17, 

68,   443,  450. 
Kehler    v.    Kemble     (26    La.    Ann. 

713),   24. 
Keim  v.  Lindley   (54  N.  J.  Eq.  418, 

30    A.    1063),    18. 
Keim    v.    O'Reilly     (54    X.    J.    Eq. 

418,  34  A.   1073),   18.  831. 
Keith  V.  Smitli    (46  Wash.   131,  89 

P.  473),  606. 
Kellogg  V.  Ke?l2   (27  111.  App.  244), 

456. 
Kelly   V.    Carter    (55   Ark.    112,    17 

S.  W.   706),   24. 
Kelly    V.    Stone    (94   Iowa    316,    62 

X.   W.   842).   4 J  6.  677. 
Kelso   V.   Woodrufl'    (88   Mich.   290, 

50   X.   W.    249),    901. 
Kemper    v.    Gans     (87     Ark.    221, 

111  S.   W.    1125),    1108. 


Kennedy   v.   McKay    (43    N.    J.    L. 

-288),  22,  40,  41,  298,  321,  629. 
Kennerly    v.     Somerville     (68    Mo. 

App.   222),   369. 
Keough  V.  Meyer    (111  X.  Y.  S.   1, 

127  A.  D."^273),  435,  451. 
Kepner   v.    Ford    ([X.    D.   '07]    111 

X.   W.  619),  39,  697,   751. 
Kerfoot    v.    Hyman    (52    III.    512), 

630. 
Kerfoot    v.    Steele    (113    111.    610), 

449. 
Kerr    v.    Cusenbury    (69    Mo.    App. 

221),  743. 
Kerr  v.  Sharp   (83  111.  199),  24. 
Kesner  v.  Miesch    (204  111.  320,  68 

X.   E.   405),   590. 
Kesterson  v.  Cheuvront    ( [Mo.  App. 

'02]    70   S.   W.    1091),   15,   558, 

989. 
Keys   V.   Johnson    (68   Pa.   St.   42), 

61,  454,  502,  532. 
Keyser  v.  Reilly    (191   Pa.  271,   43 

A.  317),  936,  992. 
Kice  V.  Porter    (21   Ky.  L.   R.   871, 

53  S.  W.  285),  298,  315. 
Kidman  v.  Garrison   ( 122  Iowa  215, 

97  X.  W.  1078),  638. 
Kidman  v.  Howard    (18  S.   D.   161, 

99   X.   W.   1104),   13,   328. 
Kiefer  v.   Yoder    (198   Pa.  St.   303, 

47    A.    974),    14,    489. 
Kienmel    v.    Skelly    (130    Cal.    555, 

62  P.   1067),   15,  57,  348,   557. 
Kiernan    v.    Bloom     ( 86    X.    Y.    S. 

899,  91  A.  D.  429),  557,  561. 
Kilboiirn   v.    King    (6    D.    C.    310), 

557,  561. 
Kilham   v.    Wilson    (11^2    Fed.    565, 

50  C.   C.  A.   108),  41. 
Kilpatrick  v.  McLau^lilin    (108  111. 

App.  463),  557.  929a. 
Kilpatrick  v.  Wi:ey    (197   Mo.   123, 

95  S.  W.  213)".  5.  28.  718. 
Kimball  v.  Herndnn  (199  Mass.  51  !. 

85  X.  E.  875),  245. 
Kimberly    v.    Henderson     (29    Md. 

512),  85,  86,  462. 
Kinder  v.  Pope   ( 106  Mo.  App.  506, 

80  S.  W.  315),  17,  61,  443,  896. 


TABLE   OF    CASES. 


lix 


[References  are   to   sections.] 


King  T.  Bauer    (8  K  Y.  S.   466), 

446. 
King  V.   Benson    (22  Mont.  250,  56 

P.  280  ) ,  560. 
King    V.    Knowles     (106    X.    Y.    S-. 

760,  122  A.  D.  414),  290. 
King    Powder    Co.    v.    Dillon     (42 

Colo.   316,  96   P.  43i),i,  557. 
Kinsland    v.    Grimshawe     ( [N.    C. 

Sup.  '07]   59  S.  E.  1000),  290, 

44(). 
Kingsley  v.  Wheeler   (95  Minn.  360, 

104  X.  W.  543),  290,  299. 
Kinnane    v.    Conroy    ( [\Vash.    Sup. 

'09]    101   P.  223),   838. 
Kirchner  v.   Concord   Ins.  Co.    ( 127 

Mo.  App.  262,  104  S.  W.  1127), 

1027. 
Kirchner  v.  liichardt    (58  X.  Y.  S. 

314,  27   Misc.  530).  744. 
Kirivan    v.    Pizer     (109    X.    Y.    S. 

739),  442. 
Kirschner    v.    Brown     ( [Kan.    Sup. 

'08]  96  P.  848),  1084. 
Kirvin  v.  Barney   (57  X.  Y.  S.  812, 

27  Misc.  181),  716. 
Kirwan  v.  Barney  (61  X.  Y.  S.  122, 

29  Misc.  614),  454,  716. 
Knapp    V.    Simon    (96   X.   Y.   284), 

588a. 
Knapp    V.    Smith    (27    X.   Y.   277), 

826. 
Knapp  V.  Wallace   (41   X.  Y.  497), 

O'Zo. 

Knauss    v.    Gottfried    ITruger    Brg. 

■Co.    (142   X.   Y.    70,   36   X.   E. 

867),  475,  557. 
Knight    V.    Knight    (142    111.    App. 

62),  745. 
Knott  V.  MidkifT    (114  La.   234,   38 

S.  153),  373,  720. 
Knowles  v.  Harvey    ( 10   Colo.   App. 

9,  52  P.  4<;),'532. 
Kno.\  V.  Barnett  (18  Fla.  594),  847. 
Knox   V.    Parker    (2    Wash.    34,   25 

P.   909),    15,   22, 
Koch   V.  Bjorkegren    (119  X.  Y.  S. 

193),    776a. 
Koch  V.   Emmerling    (63  U.  S.   [22 

How.]    69),    454. 


Kolb  V.  Bennett  Ld.  Co.    (74  :\Ii33. 

567),   15,  22. 
Konner   v.   Anderson    ( 60   X.   Y.   S. 

338,  32   Misc.  511),  454. 
Kndke    v.    Griswold    (93    X.    Y.    S. 

459,  104  A.  D.  137),  £95. 
Kramer   v.    Bliss    (88    Va.    450,    13 

S.   E.   914),   7,    18. 
Krahner  v.  Heilman    (16  Daly   [X. 

Y.]    132,  9  X.  Y.  S.  033)".  557. 
Krhut  V.  Phares    (80  Kan.  515,  103 

P.  117K  139,  314. 
Kroeger   v.   Good    (13   Ida.    184,   89 

P.  632),  563. 
Krohn   v.   Lambeth    (114   Cal.   302, 

46  P.   164),  601. 
Kronenbergor    v.    Bierling     (73    X. 

Y.  S.  895,  37  Misc.  817),  449. 
Kronenberger  v.   Teshemacher    ( 101 

X.    Y.    S.    764,    52    Misc.    130  ^ 

226. 
Krug  V.  Henricks  (  [Wasli.  Sup.  '09] 

102   P.    1049),    1071a. 
Krunner  v.  Beach   (25  Hun  [N.  Y.] 

293),   24,   321. 
Kurinsky  v.  Lynch    (201   Mass.  28, 

87    X.    E. '70),    290,    314,    321, 

371,   735,   920a. 
Kutz  V.  Fisher   (8  Kan.  90),  321. 
Kyle   V.    Gaff    (105   Mo.    App.    072, 

78  S.  W.  1047),  15,  18,  43. 
Kyle   V.    Rippey    (20    Ore.   440,    26 

P.   308),   24. 


--acev   V.   Thomas    (164    Fed.   623), 

22. 
Laffler   v.    Friedman    (57    X.    Y.    S. 

281,    26    Misc.    750),    33. 
La  force   v.    Wash.   Univ.    (1,06   Mo. 

App.   517,   81    S.   W.   •.i09),    15, 

18. 
Lamathe  v.  St.  L..  etc.,  R.  Co.    (17 

Mo.   204)'.  i2. 
Lamb    v.    Baxter     (130    X.    C.    G7, 

40  S.  E.  850).  51.  290. 
Lamb  v.  Prettynian   ( 33  Pa.  Super. 

Ct.    190),   455,   567. 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Lampkin     v.      Wilson      (5      Heisk. 

[Tenn.]  555),  26,  167,  202,  337. 
Lamson  v.  Main  ( 43  X.  Y.  S.  Super. 

■Ct.  24),  889. 
Lamson  v.  Simms   (48  N.  Y.  Super. 

•Ct.  281),  521. 
Land    Mt;je.    Co.    v.    Hargis    ( [Tex. 

C.  A."  '02]   70  S.   W.  352),  141, 

444,   447. 
Land    INItge.    Co.    v.    Preston     (119 

Ala.  290,  24  S.  707),  566. 
Lane    v.    Albright     (49    Ind.    275;, 

449. 
Lang  V.   Hand    (57   111.   App.   134), 

557. 
Lanney  v.  Healey   (56  Neb.  313,  76 

X'.    \Y.    559),    460. 
Lansing   v.   Bliss    (86   Hun  205,  33 

N.   Y.   S.  310),  51,   290,  314. 
Lansing   v.    Johnson    (18   Neb.    174, 

24   N.   W.   726),   513,  615,  616. 
Langsteth    v.    Korb    (64    N.    J.    L. 

112,  44  A.  9-34),  889. 
Lapham  v.  Flint   (86  Minn.  376,  90 

N.   W.   780),  20. 
Largent  v.  Storey   ([Tex.  C.  A.  '01] 

61   S.   W.  977),  502,  934a. 
Larson  v.  Burroughs   (116  N.  Y.  S. 

358),  488,   724. 
Larson  v.  Lorer   ([Wash.  Sup.  '08] 

94    P.    109),   924. 
Larson  v.  O'Hara  (98  Minn.  71,  107 

N.   W.   821),   18. 
Larson    v.    Newman    ( [N.    D.    Sup. 

'09]    121    N.   W.   202),    15,    24, 

37,   307. 
Larson  v.  Thoma    ( [Iowa  Sup.  '09] 

121     N.    W.     1059),    291,    320, 

454,  743. 
Lasher    v.    Gardner     (124    111.    441, 

16   N.   E.   919),    10. 
Latta   V.   Locknian    (139   Iowa   626, 

117  N.  W.  9fi2),  837. 
Latshaw    v.    Moore    (53    Kan.    234, 

36  P.  342),  439,^45,  558. 
Latshaw    v.    Moore    (53    Kan.    234, 

30    P.    342),   445. 
Law  V.   Crant    (37  WMs.  548),  313, 

314. 
Law   V.   Seeley    (37   Wash.    166,   79 

P.  606),  300. 


Law  V.   Ware    (238  111.  360,  37  N. 

E.    308).   559. 
l.aws  V.  Schmidt    (80  O.  S.   108,  88 

N.   E.  319),  93,  209,  218,  427, 

691. 
Lawler  v.  Armstrong   ( [Wash.  Sup. 

'09]    102   P.   775),   24,  41,   449, 

452,  545,  601,  799a. 
Lawrence    v.    Atwood    ( 1    111.    App. 

217),  532. 
Lawrence    v.    Lay  ton    ( 145    111.    92, 

34  N.  E.  53  f,  320. 
Lawrence  v.  Peterson   (34  Wash.  1, 

74  P.    1011),   85,   86,    111,  671. 
Lawrence    v.    Rhodes     (188    111.    96, 

58  N.  E.  910),  85,  631. 
Lawrence    v.    Weir     (3    Colo.    App. 

401,  33  P.  646),  446. 
Lawson  v.  Blk.  Diamond  Coal  Min. 

Co.    ([Wash.   Sup.   '09]    1C2  P. 

759),  38,  502. 
Lawson  v.  King   ([Wash.  Sup.  '09] 

104  P.   1118),   18,   129. 
Lawson  v.  Thompson    ( 10  Utah  462, 

37  P.  732),  565,  932. 
Lawyer  v.   Post    (109   Fed.  512,  47 

C.  C.  A.  491),  25,  630. 
Laxley  v.  Studebacker    (75  N.  J.  L. 

599,  68  A.  98),  14,  769. 
Laymy  v.  Stewart  ( 1  W.  &  S.  [Pa] 

222),   307b. 
Lazarus  v.  Sands  (33  N.  Y.  S.  855, 

12  Misc.  575,  27  N.  Y.  S.  885, 

7  Misc.   282),  25,   47,  456. 
Leahy  v.  Hair    (33   111.  App.  461), 

716. 
Leander  v.  Graves   ( [Colo.  Sup.  '09] 

100    P.   403),   771. 
Learned  v.  McCoy  (4  Ind.  App.  238, 

30  N.  E.  717"),  22. 
Lease  v.  Christy    (28  Pa.  Super.  Ct. 

507),  290."^ 
Leathers  v.  Canfield  (117  Mich.  277, 

75  N.  W.  612),  51,  290. 
Lebowitz  v.  Colligan    (45  N.   Y.  S. 

373,  18  A.  D.  624),  173. 
Lechnyr   v.   Germonsky    (113   N.   Y. 

s!  969),  906. 
Lee  V.  Conrad  ([Iowa  Sup.  '08]   117 

N.  W.   1096),  833c,   1106. 


TABLE   OF    CASES. 


Ixi 


[References  are   to   sections.] 


Lee  V.  Pattillo    (105  Va.   10,  52  S. 

E.  696),  314,  572. 
Leech    v.    demons    ( 14    Colo.    App. 

45,  59  P.  230),  446,  932,  993. 
Leekin  v.  Xordyke   (6(5  Iowa,  471), 

314. 
Leetes   v.   Norton    (43    Conn.    219), 

460,  462. 
Leimbach   v.   Regner    (70   N.   J.   L. 

608,  57  A.   138),  587. 
Leitner  v.  Boelim  ( 56  N.  Y.  S.  227 ) , 

282. 
Leonard  v.  Eldridge  ( 184  Mass.  594, 

62  N.  E.  337),  447. 
Leonard    v.    Roberts    (20    Colo.    88, 

36  P.  880),  519,  735, 
LeMaster    v.    ]3olhart,    R.    E.    Ag. 

([Tex.   C.    A.    '09]    121    S.    W. 

185),  25. 
Lemon  v.  Carter  (116  111.  App.  421), 

557. 
Lemon  v.  De  Wolf    (89  Minn.   465, 

95  N.  W.  316),  632a. 
Lemon  v.  Lloyd   ( 46  Mo.  App.  452 ) , 

(545,  557. 
Lemon    v.    Macklem     ( [Mich.    Sup. 

'09]   122  N.  W.  77),  320. 
LeMoyne  v.  Quimby    (70  111.   399), 

16. 
Lenkel   v.   Mitchell    (106   N.    Y.   S. 

549,  55  Misc.  a95),  652. 
I^roux  V.  Brown   (12  C.  B.   [Eng.] 

«01),  18. 
LeRoy   v.   Beard    (8    How.    [U.   S.l 

451),   26,  43,  417. 
Lester  v.  Kinne  ( 37  Conn.  9 ) ,  24. 
Lestrade    v.    Vanzani    (6    La.    Ann. 

390),   505,   532. 
Levistone  v.  Landreaux   (6  La.  Ann. 

26),  477. 
Levy  V.  Coogan    ( 16   Daly    [X.   Y.] 

137,  9   X.   Y.  S.  534),   57,   61, 

161,  502. 
Levy    V.    Kottman     (32    X.    Y.    S. 

241,  11  Misc.  372),  85. 
Levy  V.   Rothe    (39   X.  Y.   S.   1057, 

17  Misc.  402),   13.  449. 
Levy  v.   Ruff    (23  X.   Y.  S.  1002,  4 

Misc.  180),  41,  464. 
Levy  v.  Ruff    (22  X.  Y.  S.   744,  3 

Misc.  147),  557. 


Levy   v.  Spencer    (18   Colo.   532,  33 

P.  415),  371. 
Levy   V.   'Irinible    (94   X.    Y.    S.    3, 

47   Misc.   394),   28,   145,   419. 
Levy  V.  Wolf    (2  Cal.  App.  491,  84 

P.    313),   619, 
Leuschner  v.   Patrick    ( [Tex.   C   A. 

'07]    103  S.  W.   664),  67,   464, 

628,    752,    753,    768,    775,    837, 

1101. 
Lewis  V.  Briggs    (81  Ark.  96,  98  S. 

W.  683),  630. 
Lewis    V.    Dennison    (2    App.    Cas. 

[D.  C]  387),  290. 
Lewis   V.  Mansfield   Gr.   &   Ele.   Co. 

([Tex.   C.    A.   '09]    121    S.    W. 

585),    454,    1121,    1122. 
Lewis   V.   McDonald    (83   Xeb.    6«4, 

120  X.  W.  207),  33,  444,  446. 
Lewis  V.   Simpson    ( 122   Iowa,    663, 

98  X.  W.  508),  454. 
Lewis  V.  Susmilch    (130  Iowa,  103, 

106  X.  W.  624),  290,  446,  740, 

1040a. 
Lichtenstein  v.   Mott    (91   X.   Y.   S. 

57,    99    A.    D.    570),   290,    915, 

964. 
Lienwen  v.  Kline   (  [Iowa  Sup.  '09  | 

120  X.  W.  312),  708,  915. 
Lightcap   v.  Xicola    (34   Pa.   SupiT. 

Ct.   189),  23,  24,  290,  321,  401, 

559. 
Eighty  v.  Daggett   ([S.  D.  '09]   121 

X.  W.  862),  18. 
Lincoln    v.    McClatchie     (36    Conn. 

136),  448. 
Linderman     v.    ^McKenna     ( 20    Pa. 

Super.    Ct.   409),  51,  290. 
Lindheim   v.   Cen.   Nat.   Realty    Co. 

(97   X.   Y.    S.    619,    111    A.    D. 

275),   16,   172. 
LJndley   v.   Fay    (119    Cal.   239,   51 

P.  333).  449. 
Lindt  v.  Schlitz   Brewing  Co.    (113 

Iowa,  200,  84  X.  W.  1059),  558, 

794,   1073. 
Lipe  V.  Ludwick  (14  111.  App.  372), 

292. 
Lipscomb  v.  Cole  (81  Mo.  App.  53), 

13,  42. 


Ixii 


TABLE   OF   CASES. 


[Referencfs  are  to  sections.] 


Lipscomb  V.  Mastin  ([Mo.  App. '10] 

125   S.  W.   1177),  314,  8ti2b. 
Lipsley    v.    Holridge    (71    111.    App. 

«52),  532. 
List  &  Son  Co.  v.  Chase   (80  0.  St. 

42),  246,  840. 
Little    V.    Fleischman    ( [Utah    Sup. 

'C9]    101  P.  984),  557. 
Little  V.  Hcrzinger    (34  Utah,  337, 

97    P.   €30),   464,   465,   818a. 
Livermore  v.  Crane    (26  Wash.  529, 

G7   P.   221),   588. 
Livezy    v.    Miller     (61    Md.    33i3), 

141,  444,  445,  446,  447. 
Lockliart  v.  Hamlin  ( 190  N.  Y.  132, 

-    82  N.  E.  1094),  510,  743. 
Locke    V.    Grisvvold     (96    Mo.    App. 

527,  70  S.  W.  400),  113,  136. 
Lockwood  V.  Halsey    (41   Kan.   166, 

21   P.  98),  382,  504,  554. 
Lockwood   V.    Rose    (125    Ind.    588, 

25  X.  E.  710),  557. 
Loeb  V.  Teppe  (112  N.  Y.  S.  1043), 

1055. 
Loehde  v.  Halsey  (88  111.  App.  452), 

61,  76a,  502. 
Loftus  V.   Green    ([Tex.  C.  A.   '07] 

104  S.  VV.  396),   1029. 
Logan    V.    Mc^Iullen    (4    Cal.    App. 

154,  87  P.  285),  17,  40,  41. 
Lloyd    V.    Colston     (5    Bush    [Ky.] 

587),  51,  290. 
Lloyd   V.   Kirley    ([Tex.   C.   A.  '07] 

106  S.  W.  696),  771. 
Lloyd  V.  Matthews   (51  X.  Y.  124), 

"  446,  449,  450. 
Long  V.   Hand    (57   HI.   App.   134), 

557. 
Long  V.  Herr    (10  Colo.  380,   15   P. 

802),    13,   430. 
Long    V.    Thompson     ( 73    Kan.    76, 

84  P.  552),  557,  640. 
Lopard    v.    Fritz    (91    X.    Y.    S.    5, 

45  Misc.  620),  590. 
Lord  V.  Moran   (64  X.  Y.  S.  37,  31 

Misc.  750),  242. 
Lotz  V.  Levy    (104  X.   Y.   S.    1058, 

120  A.  D.  477),  504. 
Louisville  Bldg.  Ass'n.  v.  Hegan  (20 

Ky.  L.  R.  1629,  49  S.  W.  796), 

38,  494. 


Louisville,  etc.,  R.  Co.  v.   Shepard 
(126  Ala.  416,  28  S.  202),   12, 

459. 
Love  V.  Hass   (62  Ind.  255),  414. 
Love  V.  Miller  (53  Ind.  294),  460. 
Love  V.  Owens.   (31  Mo.  App.  501), 

460. 
Love  V.  Scatcherd    (146   Fed.   1,   77 

C.  C.  A.  1),  485,  1061. 
Lovell  V.  Clinch   ( 101  X.  Y.  S.  174, 

115  A.  D.  635),  557. 
Loving  V.  Hesperian  Cattle  Co.  ( 176 

Mo.    330,   75    S.    W.    1095),    22 

24,   415,   783. 
Low    V.    Woodbury    (95    X.    Y.    S. 

336,   107  A.  D.  298),   177,  290. 
Lowry   v.   Harris    (12   Minn.   255), 

24. 
Lucas    V.    County    Rec.    Cass.    Co. 

(75  Xeb.  351,  106  X.  W.  217), 

167. 
Lucas  V.  Jackson   (140  Pa.  St.  122, 

21   A.  310),  207. 
Lucas  V.  Smith    (98  X.  Y.  S.   1037, 

113  A.  D.  31),  31. 
Luckett  Land  &  Em.  Co.  v.  Brown 

(118  La.  943,  43  S.  628),  567, 

617,   124. 
Ludlow  v.  Carman   (2  Hilt.  [X.  Y.] 

107,  449,  450. 
Luhn  V.   Fortran    ([Tex.  C.  A.  '08] 

115   S.   W.   667),   22,   483,   611, 

735. 
Lukin   V.   Halderson    (24   Ind.  App. 

645,   57   X.   E.  254),  632a. 
Lunn  V.  Guthrie   (115  Iowa,  501,  88 

X.  W.  1060),  300,  630. 
Lunsford  v.   Bailey    (142   Ala.   319, 

38   S.   362),   640a. 
Lyle  V.  Univ.  Land,  etc.,  Co.   ( [Tex. 

C.  A.  '95]   30  S.  W.  723),  119, 

449,  558,  577. 
Lynch  v.  Fallen  (11  R.  L  311),  314, 

709. 
Lynch    v.    McKenna    (58    How.    Pr. 

[X.   Y.]    42),   454. 
Lyon    V.    Pollock    (99    U.    S.    668), 

337a. 
Lyons  v.   Pyatt    (51   X.  J.  Eq.   60, 

26  A.  334),  24. 


TABLE   OF    CASES. 


Ixiii 


[References  are   to   sections.] 


Lyie  V.  Bennett  (70  N.  Y.  S.  283, 
34  Misc.  476),  24,  557. 

Lyttle  V.  Goldberg  (131  Wis.  613, 
111  N.  VV.  718),  300. 


M 


Macferran  v.  Gallinger   (210  Pa.  74, 

59  A.  435),   15,  290. 
Madison  Ave.   v.  Osgood    (18  N.  Y. 

S.  126),  206,  5G0,  851. 
Madler  v.   Pezorski    (124  Wis.  477, 

102  X.  W.  892),  497,  519,  723, 

791. 
Magill  V.  Stoddard   (70  Wis.  75,  35 

X.  W.  346 ) ,  454. 
Mahon   v.   Rankin    ([Or.   Sup.   '09] 

102   P.  608),  620a,   737a,  922a. 
Mainhart   v.    Paerschki    (65   X.   Y. 

S.   494,  32  Misc.  97),  177. 
Mainwaring    v.   Crane    (22    Quebec 

Sup.   Ct.   67),    10. 
Mukham  v.  Washburn   (18  X.  Y.  S. 

355),  557. 
Malone  v.  McCullough  (15  Colo.  460, 

24   P.    1040),    18,   418. 
Mallonee  v.  Youn.?   (119  X.  C.  549, 

26  S.  E.  141),  558,  917. 
Maloon  v.  Barrett    ( 192  Mass.  552, 

78  X.  E.  560),  24,  560. 
Manby    v.    Turner    ( 13    Colo.    App. 

358,  57  P.  862),  546. 
Manders  v.  Craft  (3  Colo.  App.  2ZQ, 

32  P.  836),  475,  557. 
Hanker  v.  Tough    ([Kan.  Sup.  '08] 

98  P.  792),  18,  576. 
Mann   v.   Griswold     (112   X.    Y.    S. 

271,  59  Misc.  239),  195,  204a. 
Mann  v.  Robinson,   19  W.  Va.  49), 

18,  53,  342. 
Mannix   v.    Hildreth    (2    App.   Cas. 

[D.   C]    259),    18. 
Maracella  v.  Odcll   (3  Daly  [X.  Y.] 

123),  17,  446. 
Marcus  v.  Bloomingdale    (71   X.  Y. 

S.  374,  63  A.  I).  227),  558. 
Marcus  v.   Kenneally    (43   X.   Y.   S. 

1056,    19   Misc. '517),   292. 
Marlott  V.  Elliott  (69  Kan.  477,  77 

P.  104),  446,  532. 


Markham   v.   Washburn    (18   X.   Y. 

S.  355),  24,  557. 
Marks  v.  Elliott   (90  X.  Y.  S.  331), 

477. 
Marks  v.   O'Donnell    (121   X.   Y.  S. 

214),  678,  799a. 
Marks  v.  Taylor    (23  Utah  470,  63 

P.  897,  65  P.  203),  24. 
Marlin  v.  Sipperell    (93  Minn.  271, 

101  X.  W.  169),  39,  721. 
Marmaduke  v.  Martin  (90  Mo.  App. 

629),  224. 
Marple  v.   Ives    (111    Iowa   C02,   82 

X.  W.   1017),  32,   179. 
Marriott    v.    Brennan    (14    Ont.    L. 

R.    508,    10    Ont.    W.    R.    159), 

557. 
Marsh  v.  Buchan  (46  X"".  J.  Eq.  595, 

22  A.   128),  41,  290. 
Marshall    v.   Goble    (32    Xeb.   9,   48 

X.  W.  898),  672,  872. 
Martien   v.   Mayor,    etc.,    Baltimore 

(109  Md.  260,  71  A.  260),  447, 

771a. 
Martin  v.   Billings    (2    City   Ct.   R. 

[X.  Y.]    86),  489,  557,  581. 
Martin  v.   Bliss    (57   Hun,   157,    10 

X.  Y.  S.   886),  412. 
Martin   v.    Ede    (103    Cal.    157,    37 

P.   199),  472,  533. 
Martin  v.  Pagan    (88  X.  Y.  S  472, 

95    A.    D.    154),    61,    317,    446, 

454,  502,   885. 
Martin  v.  Pettit  ( 117  X.  Y.  S.  364), 

630. 
Martin  v.  Silliman   (53  X.  Y.  615), 

61,  502. 
Martin   v.   Wermann    (95   X.   Y.   S. 

284,  107  A.  D.  482),  577. 
Marx   V.   Otto    (117    Mich.   510,    76 

X.  W.  7),  889. 
Mason  v.  Clifton  (3  F.  &  F.  [Kng.] 

899),   393. 
Mason  v.  Hinds   (19  X.  Y.  S.  996), 

155. 
Mason  v.  Small   (130  Mo.  App.  249, 

109  S.  W' .  822 ) ,  603. 
Mass.  Mutual  Li«'e  Ins.  Co.  v.  Bogo;s 

(121  111.   119,   13  N.  E.  650), 

71. 


Ixiv 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Masten   v.    Griffing    (33   €al.    HI), 

557. 
Masterson  v.  Knight   ( 135  111.  App. 

548),  465. 
Matheney   B.   &,   K.  v.   Godin    (130 

Ga.  713,  61  S.  E.  703),  655. 
Matler   v.   Jeffries    (145   Mich.  598, 

108  N.  W.  994),  1019. 
Mattes    V.    Engle     (15    S.    D.    330, 

89  N.  W.  651),  477,  557. 
Matthews   v.    Light    (32   Me.   305), 

389b. 
Matthews  v.     Soule   (12  Neb.  398), 

18,  135. 
Maxwell    v.   West    (23   Pa.   Co.   Ct. 

302),  51,  290. 
May  V.   Schuyler    (43  N.  Y.  Super. 

Ct.  95),  411. 
Mayer  v.  Harren   (57  N.  Y.  Super. 

Ct.  574,  5  N.  Y.  S.  436),  493. 
Mayer    v.    McCann    ( 136    111.    App. 

50),  68,  1043,  1044. 
Mayfield   v.    Turner    (180    III.    332, 

54  N.   E.  418),  285,  289a. 
Maze  V.  Gordon    (96  Cal.  61,  30  P. 

962),   12,  24,   120,  552,  577. 
Mead   v.   Altgeld    (136   111.   298,   26 

N.  E.  388 ) ,  383. 
Mead  v.  Arnold   (131  Mo.  App.  214, 

110  S.  W.  656),  828,   888. 
Meader    v.    Brown    (102    N.    Y.    S. 

32,  116  A.  D.  734),  548. 
Mears   v.    Jones    (102    Me.    485,    07 

A.  555),  212. 
Mears  v.  Morrison    ( 1  Breese   [111.] 

172),  75. 
Mears  v.   Stone   (44  111.  App.  444), 

141,  444,  445. 
Mechem  on   Ag.   1,  2,  3,  4,  5,  6,  7, 

11,    15,    18,   22,   24,   25,   37,    67, 

79a,    79b,    139,    176,    290,    402, 

443,    455,    466,    509,    521,    546,  , 

546a,  588a,  637b,  676,  834. 
Meech   v.  Smitli    (7   Wend.   [N.  Y.] 

315),  307b. 
Meeker    v.   Manning    (162    111.    203. 

44  X.  E.  397),  41,  53. 
Meeker  v.  York,    (13  La.  Ann.   18), 

630. 
Meislahm  v.  Engellierd   ( 20  N.  Y.  S. 

900,  1  Misc.  412),  889. 


Meline  v.  Ruffino   ( 129  Cal.  514,  62 

P.  93),   18,  34,  48. 
Meltzer  v.  Straus  (113  N.  Y.  S.  583, 

61   Misc.   250),  45, 
Mendenhall  v.  Rose  ([Cal.  Sup.  '93] 

33  P.  884),  t)06. 
Mendles    v.    Danish     (74    N.    J.    L. 

333,   65   A.  888),  590. 
Menges  v.  Fitzgerald    (95  X.  Y.  S. 

436,   108  A.  D.  24),  613,  1000. 
Menifee    v.    Wiggins     (57    111.    50), 

877. 
Mercantile   Trust   Co.   v.   Niggeman 

(119    Mo.   App.    56,    96    S,    W. 

293),  529,  620. 
Mercy    v.    Wallon     (115    111.    App. 

435),  557.' 
Merriam  v.  Johnson    ( 86  Minn.  61, 

90  N.  W.  116),  139,  290,  893. 
Merrill    v.    Latham    (8    Colo.    App. 

263,    45    P.    524),    17,    24',    162, 

443,   557. 
Merrill  v.  Wilson  (6  Ind.  416),  291. 
Merriman   v.   Thompson    (48   Wash. 

500,   93   P.    1075),   404. 
Merriman  v.  Wickersham   (141  Cal. 

567,  75  P.  180),  454. 
Merritt  v.  Wassenich  (49  Fed.  785), 

18,  42. 
Merryman    v.    Davis    31    111.    404), 

630. 
Meston  v.  Davis    ([Tex.  C.  A.   '96] 

36  S.  W.  805),  17. 
Metcalfe    v.   Gordon    (83   N.    Y.    S. 

808,  86  A.  D.  368),  446,  871. 
Metcalfe    v.    Kent    (104    Iowa    487, 

73  N.  W.  1037),  13,  19,  21. 
Metschen    v.    Swenson     ( [Or.    Sup. 

'09]   99  P.  277),   172,  559. 
Metzer  v.  Wyatt  (4l  111.  App.  487), 

42,   563. 
Meyer  v.  Hanchett    (39   Wis.  419), 

314. 
Meyer  v.   Hanchett    (43   Wis.   246), 

51,    290. 
Meyer   v.    King    (29    La.   Ann.    567, 

569),  74. 
Meyer  v.   Moore    (78   Neb.  448,   110 

N.  W.  989),  77,  78. 
Meyer  v.  Morgan  (51  Miss.  21),  24. 


TABLE   OF   CASES. 


Ixv 


[References  are  to  sections.] 


Meyer  v.  Strauss   (58  N.  Y.  S.  904, 

42   A.  D.  613),   292,  447,   889, 

1059. 
Meyers  v.  Dean    (29  N.  Y.  S.  578, 

9  Misc.   183),  217.  446. 
Meyers  v.  Dean    (32  N.   Y.  S.   237, 

11  Misc.  368,  371),  8a. 
Michaelis  v.   Gaeren    (41   N.   Y.   S. 

563,  9  O.  D.  495),  557. 
Michaelis  v.  Ruffmann   ( 76  N.  Y.  S. 

973,  37  Misc.  830),  531. 
Michener  v.  Beiern    (9   Pa.  Co.  Ct. 

637),  449. 
Micks  V.  Stevenson    (22   Ind.    App. 

475,  51   N.  E.  492),  460. 
Middleton  v.   Findla    (25  €al.   76), 

533. 
Middleton    v.    Thompson    (163    Pa. 

St.   112,  29  A.   796),  533,  890. 
Millan  v.  Porter  (31  Mo.  App.  563), 

55,  446,  531. 
Miller  v.  Barth  (71  N.  Y.  S.  989,  35 

Misc.   372),   454,   557. 
Miller   v.   Holland    (1    Wkly.   Notes 

Cas.    [Pa.]    36),   558. 
Miller  v.  Early   (22  Ky.  L.  R.  825, 

58  S.  W.  789),  466,  766,  931. 
Miller  v.   Irish    (67   Barb.    [N.  Y.] 

256),  557,  740. 
Miller  v.  Vining   (98  N.  Y.  S.  466, 

112  A.  D.  304),  292,  447. 
Millett  V.  Barth    (18  Colo.  112,  31 

P.  769),  454. 
Milliken    v.    Jones     (77    111.    352), 

291. 
Milne  v.  Ingersoll  S.  Drill  Co.   ( 104 

N.  Y.  S.  1053,  120  A.  D.  465), 

531. 
Milne  v.  Kleb  (44  N.  J.  Eq.  378,  14 

A.  646,  810),  26,  41,  590. 
Milstein    v.    Doring    (92    N.    Y.    S. 

417,  102  A.   D.   349),  85. 
Minster   v.   Benolish    (66   N.   Y.    S. 

493,  32  Misc.  630),  454. 
Missouri,   State  of,  590. 
Mitchell  V.  Edeburn   (37  Pa.  Super. 

Ct.   223).   1055a. 
Mitchell  V.  Gifford    ( [Ga.  Sup.  '10] 

67  fe.  E.  197),  314,  1076a,  1075b, 

1075c. 


Mitchell  V.  Maupin    (3  T.   B.  Mon. 

[Ky.]    185),   17,   18,  26,  334. 
Mitchell    V.    Rushing    ([Tex.    C.    A. 

'09]   118  S.  W.  582),  1115. 
Mitchell    V.    Rushing    ( [Tex.    C.    A. 

'09]    117   S.    W.    996),   626a. 
Mitchell  V.  Sproul    (5  J.  J.  Marsh. 

[Ky.]    264),  26,  592. 
Mitchell    V.    Weddington    ( [Ky.  Ct. 

App.  '09]   122  S.  W.  802),  840. 
Monk    V.    Parker     ( 180    Mass.    246, 

63   N.    E.    793),    87,   454,   557, 

757,  843,  893. 
Monroe   v.   Snow    (131    111.    126,   23 

N.    E.    401),     557,    590,     732, 

748,  763. 
Montgomery  v.  Amsler  (  [Tex.  C.  A. 

'09]    122   S.   W.  307),   22,  300, 

539,   564,   776a. 
Montgomery  v.  Biering  ( [Tex.  C.  A. 

'95]   30  S.  W.  508),  447. 
Montgomery    v.    Knickerbocker    (50 

N.   Y.   S.    128,  27   A.   D.   117), 

12,   33,    112,   328,  427,   551. 
Montross   v.   Eddy    (94    Mich.    lOO, 

53  N.  W.  916),  475,  557,  578. 
Mooney  v.   Elder    (56   N.   Y.   238), 

4'54,  840. 
Moore  v.  Boehm    (26  N.  Y.  S.  67), 

6  Misc.   38),   893. 
Moore  v.  Boehm    (91  N.  Y.  S.  125, 

45    Misc.    622),    560,   614,   625, 

686,   727,   789,    1016. 
Moore  v.  Cresap   (109  Iowa  749,  80 

N.  W.  399),  292. 
Moore  v.  Daiber   (92  Mich.  402,  52 

N.  W.  742),  34. 
Moore  v.   Irwin    (89   Ark.   289,   116 

S.  W.   662),  320,  464,  554. 
Moore   v.    Lockett    (2   Bibbs    [Ky.] 

67),  18,  339. 
Moore    v.    Maguire     (98    N.    Y.    S. 

752),  557. 
Moore    v.     Mendlebaura     (8     Mich. 

433),   389b. 
Moore    v.    Moore     (5    N.    Y.    256), 

389b. 
Moore    v.    Stone     (40    Iowa,    259), 

15. 
Moore  v.  Wilson   (6  Foster  [N.  H.] 

337),  307b. 


Ixvi 


TABLE   OF    CASES. 


TReferences  are   to   sections.] 


Moore's  Est.  9  Pa.  Dist.  Rep.  675), 

473. 
Morehouse    v.    Remsen     (59    Conn. 

392,  22  A.  427 ) ,  959. 
Morey  v.   Harvey    (18  Colo.   40,   31 

P.  719),  377,  378,  889. 
Morey  v.  Laird    ( 108  Iowa,  670,  77 

N.    W.   835),   412. 
Morgan   v.    Calvert    (110   N.   Y.   S. 

855,  126  A.  D.  327),  533. 
Morgan  v.  Keller   (194  Mo.  663,  92 

S.  W.  75),  557,  612,  1016. 
Morgan   v.  Mason    (4   E.  D.  Smith 

[X.  Y.]    636),  446. 
Morganstern   v.   Hill    (28   N.   Y.   S. 

704,   8   Misc.   356),   389. 
Morris    v.    Francis     ( 75    Kan.    580, 

89  P.  901),  557. 
Morris    v.    Poundt     (99    N.    Y.    S. 

844,  51  Misc.  6),  295,  650. 
Morris    v.    Ruddy     (20    N.    J.    Eq. 

236),   307a. 
Morris  v.  Taylor    (49  111.   17),  291. 
Morris   v.    Terrill    (2    Rand.    [Va.] 

6),  314,  845,  850. 
Morris  v.  Watson    (15  Minn.  212), 

203. 
Morrison   v.   Tuska    (113   N.   Y.   S. 

611),  45. 
Morson  v.  Burnside    (31  Ont.  438), 

86. 
Mortimer    v.    Cornwell     ( 1    Hoffm. 

[X.   Y.]    Ch.   351),    128,   561. 
Morton   v.    Barney    ( 140    111.    App. 

333),  449. 
Mosely    v.    Buck     (3    Munf.    [Va.] 

232),  290,  314. 
Moses  V.  Beverly   ( 137  Ala.  473,  34 

S.  825),  878. 
Moses  v.  Bierland   (31  X.  Y.  462), 

13. 
Moses  v.  Helmke   (41  X.  Y.  S.  557, 

18  Misc.  357),  557. 
Moskowitz  V.  Hornberger   (38  N.  Y. 

S.   114,   15   Misc.   645),   153. 
Moskowitz  v.  Hornberger   (46  X.  Y. 

S.  462,  20  Misc.  558),   19,  155, 

190,    319,    866. 
Moss    v.    Wren     ([Tex.    Sup,    '08] 

118   S.  W.   149),  460. 


Moss    V.    Wren     ([Tex.    Sup,    '08] 

113  S.  W.  739),  465. 
Mott    V.   Ferguson    (92    Minn,    201, 

99   X.    W.   804),   245, 
Mott  V.  Minor   ( [Cal.  App.  '09]   106 

P.  244),   601,   684a,  .884a. 
Mousseau   v.   Dorsett    ( 80   Ga.   566, 

o   S.   E.   780),  901,   1054. 
Mousseau  v.  La  Roche  (80  Ga.  568, 

5  S.  E.  780),  453,  960. 
Mowbry  v.  Randolph    (7   Cal.  App. 

421,  94  P.  403),  314. 
Mueller   v.   Bell    ([Tex.   C,   A.   '09] 

117  S.  W.  993),  25,  518,  632b. 
Muir   v.   Kane    ([Wash.    Sup.   '09] 

104   P.    153),  590. 
Muir  V.  Moeller   (46  Wash.  601,  90 

P,  1042),  557. 
Mulhall  v.  Bradley,  etc,  Co,   ( 63  X. 

Y.  S,  782,  50  A.  D.  179),  160, 

633,  662, 
iMullaly    v.    Greenwood     (127    Mo. 

138,   29   S.  W.   1001),    197. 
Mullen  V,  Bowen  ( 22  Ind.  App.  294, 

53  X,  E,  790),  25,  59,  75,  291, 

391,  558,  632a,  912,  962. 
Mullen  V,  Bowen  ( 26  Ind.  App,  253, 

59  X,  E.  419),  446. 
MuUenhoff    v.    Gensler     (15    X.    Y. 

673),  557. 
Muller  V.   Kutzleb    (7   Bush    [Ky.] 

253),  475,  557. 
Mulligan  v.   Owens    (123   Iowa  285, 

98  X.  W.   792),   300,  358,   516, 

563,  802. 
Mumme  v.  Gates   (  [Tex.  C.  A.  '09] 

120  S,  W.  1046),  1019a. 
Munford  v.  Miller  ( 7  111.  App.  62 ) , 

267,  899, 
Munroe  v,  Taylor    (191  Mass,  483, 

78  X.  E,   106),  449,  456.    . 
Munson  v,   Carlstrom    ( [Iowa  Sup. 

'09]    119   X.  W.  606),  69,  465, 

934. 
Munson    v.    Fenno     (87     111,    App. 

655),  576,  631. 
Munson  v.  Mahon    (135   Iowa  335, 

112  X\  W.  775),  28,  515,  560, 

860. 


TABLE   OF    CASES. 


Ixvii 


[References  are   to   sections.] 


Murray  v.  Curry  (7  C.  &  P.  [Eng.] 

684,  32  E.  €.  L.  771),  445,  446, 

896. 
Murray  v.  East  End  Imp.  Co.    (22 

Ky.  L.  R.  1477,  60  S.  VV.  648), 

224. 
Murray   v.   Rickard    (103   Va.    132, 

48  S.  E.  871),  41,  500,  506. 
Murphy    v.    Hiltibridle    ( 132    Iowa 

114,     109    N.    W:    471),     523, 

1018. 
Murphy    v.    Ottenheimer     (84    111. 

39),  22. 
Muskovitz  V.  Miller    (113  N.  Y.  S. 

1037),  972. 
Mutchniek   v.  Davis    (114  N.  Y.  S. 

997),  465,  694a,  1113. 
Mutchniek  v.  Friedman   (120  N.  Y. 

S.  375),  901. 
Myers  v.  Buell   ( 142  III.  App.  467  ) , 

454. 
Myers  &  King  v.  Coleman    ( [Miss. 

Sup.   '08],  46   S.   249),  23. 
Myers  v.   Paine    (43   N.   Y.   S.   133, 

13  A.  D.  332),  675. 
Myers    v.    Simmons    ( 19    La.    Ann. 

370),  24. 


Mo 

McAfee   v.   Bending    (36   Tnd.    App. 

628,  76  X.  E.  412),  296,  693. 
McAllister    v.    Walker     (39    Minn. 

535,  41  X.  W.  107),  59. 
McArthur  v.   Slos.son    (53  Wis.  41, 

9  X.  W.  784),  61,  502,  557. 
McCabe  v.  Jones    ([Wis.   Sup.  '10] 

124  X.  W.  486),  4G4.  1130. 
McCaffery  v.  Page    (20  Pa.   Super. 

Ct.  400),   113,  889,  890. 
McCampbell     v.     Cavis     (10     Colo. 

App.  242,  50  P.  728),  291. 
McCann    v.    Bailey     (60    Mo.    App. 

456),  445. 
McCann  v.  Meyer   (232  111.  507.  83 

X.  E.  1042),  760,  1043.  1044. 
McCarthy   v.   Loupe    (62   Cal.   299, 

10  P.  C.  L.  J.  562),  590. 
MiJClave  v.  Maynard   (35  How.  Pr. 

313),  425. 


McClave  v.  Paine    (49  X.  Y.  561), 

558. 
McClave  v.   Paine    (2   Sweeney    [X. 

Y.]  407,  41  How.  Pr.  140),  182, 

446. 
McCleary  v.  Willis   (35  Wash.  676, 

77    P.    1073),    300,    396,    519, 

525,  673,  792,   1009. 
McClellan  v.  Parker   (27  Mo.   162), 

291. 
McCloskey  v.  Thompson    (56  X.  Y". 

S.   1076,  26  Misc.  735),  443. 
McClure  v.   Luke    (154   Fed.   647), 

475,  559. 
McComb  V.  Von   Ellert    (27   X.   Y. 

S.  372,  7  Misc.  Rep.  59),  19. 
McConaughty  v.  Mehannah    (28  111. 

App.  169),  61,  460,  502. 
McCormick  v.  Henderson    (100  Mo. 

App.   647,   75  S.   W.    171),  61, 

292,  502,  990. 
McCormick  v.  McCaffery   (74  X.  Y. 

S.  836,  36  Misc.  775).  24,  557. 
McCullough  V.  Hitchcock  (71  Conn. 

401,  42  A.  81),  18. 
McCray  v.  Pfost  ( 118  Mo.  App.  672, 

94  S.  W.  998),  15,  557. 
McCrary  v.  Kellogg   (106  Mo.  App. 

597,  81   S.  W.  465),   17,  446. 
McCrea   v.    Ogden    (50    Wash.   495, 

97  P.  503),  602a. 
McCrea    v.     Ogden     ( [Wash.     Sup. 

'09]   103  P.  788),  606. 
McCubbin  v.  Graham  (4  Kan.  340), 

384. 
McCune  v.   Badger    (126  Wis.    186, 

105  X.  W.  667),  41. 
McCurry  v.  Hawkins   (83  Ark.  242, 

103  S.  W.  600),  10,  21(5. 
McDermott    v.     Abney     ( 106    Iowa 

749,  77  X.  W.  505).  782. 
McDermott  v.  Malionev    (119  Iowa 

470,  93   X.  W.  40*9).  890,  891. 
McDermott  v.  Mahonry  ( [  Iowa  Sup. 

'08]    139   Iowa  292.   115  X.  W. 

32),  17,  299,  317.  474.  557,  560, 

563,   625,   7-10,   744,   815. 
McDermott     v.     Mahoney      ( [Iowa 

Sup.]     106    X.    W.    925),    464, 

7C0,  862,  1039. 


Ixviii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


McDonald    v.    Cabiness    (100    Tex. 

615,  98  S.  W.  943,   102  S.   W. 

721),    15,    408,    454,    511,   512, 

799. 
McDonald  v.  Fithian  (1  Gilm  [111.] 

269    [6   111.]),   630. 
McDonald  v.  Ortman   (98  Mich.  40, 

56  N.  W.  1055),  587,  736. 
McDonald  v.  Maltz   (94  Mich.   172, 

53  N.  VV.   1058),  290. 
McDonald  v.   Smith    (99  Minn.  42, 

108  N.  W.  291),  557,  735. 
McDonnell   v.    Stevenson    ( 104   Mo. 

App.   191,  77  S.  W.  766),  587. 
McDowell    V.    Simpson     (3    Watts 

[Pa.]   129),  24. 
McFarland  v.  Lillard   (2  Ind.  App. 

160,  28  N.  E.   229),   532,  557, 

•628. 
McFarland  v.  McCleese    ( [Pa.  Sup. 

Ct.  '86]  5  A.  50),  230,  349,  402. 
McFee  v.  Horan    (40  Minn.   30,  41 

N.  W.  239),  679. 
McGavock  v.  Woodlief   (20  Howard 

[U.  S.]  221),  557. 
McGeary  v.  Satchwell  (129  Cal.  389, 

62  P.  58),  590. 
McGill  V.  Gargoula    (103  N.  Y.  S. 

113),  557. 
McGill    V.    Pressly    (62    Ind.    193), 

630. 
McGoldrick   v.    Willets    (52   N.   Y. 

612),  413. 
McGonigal      v.      Roughley      ( [Del. 

Super.  '06]   63  A.  801),  631. 
McGovern    v.    Bennett     ( 146    Mich. 

558,  109  N.  W,  1055),  22,  300, 

317,  572. 
McGuire  v.  Carlson    (61    111.   App. 

295),  445,  446,  454,  743a,  867. 
McGuire  v.  Garber   (125  Iowa  533, 

101  N.  W.  279),  557. 
McHenry  v.  Painter  (58  Iowa  365), 

17,  "l8. 
McKinne  v.   Harvie    (38   Minn.    18, 

35  N.  W.  668),  23,  41,  609. 
McKinne  v.  Hope   (118  Ga.  462,  45 

S.  E.  413),  24,  557. 
McLane  v.  Maurier   (28  Tex.  C.  A. 

75,  66  S.  W.  693,  1108),  300. 


McKnight  v.  Thayer    (21  N.  Y.  S. 

440),  446,  528,  557. 
McLane  v.  Goode   ( [Tex.  C.  A.  '02] 

68  S.  W.  707),  454,  1004. 
McLaughlin    v.    Campbell     ( [N.    J. 

Err.   &  App.   '09]    74   A.  530), 

487a,  799,  896. 
McLaughlin  v.   Whiton    (76  N.   Y. 

S.  1U06,  37  Misc.  838),  632a. 
McLaughlin    v.    Wheeler    (1    S.    D. 

497,  47  N.  W.  816),  533. 
McLaughlin  v.  Ranger  ( 66  N.  Y.  S. 

450,  32  Misc.  732),  863. 
McLure    v.    Luke    (152    Fed.    647), 

475,  559. 
McMahon     v.     McGrow     (26     Wis. 

614),  345. 
McMurtry    v.    Madison     ( 18    Neb. 

291,   25   N.   W.   85),  557,   615, 

957. 
McNulty  V.  Rowe   (59  N.  Y.  S.  690, 

28  Misc.  523 ) ,  446. 
McPhail  V.  Buell    (87  Cal.   115,  25 

P.  266),   503,  570. 
McQuillan  v.  Carpenter    (76  N.  Y. 

S.  556,  72  A.  D.  595,  76  A.  D. 

556),  531. 
McReavy    v.    Eshelman     (4    Wash. 

757,  31  P.  35),  341. 
McVicker,  etc..  Realty  Co.  v.  Garth 

(97  JST.   Y.  S.   640,    111    A.   D. 

294),    171. 
McVicker   v.   Roche    (77    N.    Y.   S. 

501,  74  A.  D.  397),  12,  17. 


N 


Nadler  v.  Menschall    (110  N.  Y.  S. 

384),   432. 
Nance  v.  Smythe  ( 118  Tenn.  349,  99 

S.  W.  698),  291,  799. 
Natt  V.  Papst    (15  La.  306),  9. 
Neal    V.   Lehman     (11    Tex.    C.    A. 

461,    34    S.    W.    153),   22,    290, 

558. 
Nebraska,    State   of,   590. 
Neederlander    v.    Starr     (50    Kan. 

766,  32  P.  359).  41. 
Neely    v.    Anderson    (2    Strob.    [S. 

C]   Eq.  262),  708. 


TABLE   OP    CASES. 


Ixix 


[References  are   to   sections.] 


Neely  v.  Lewis    (38   Wash.  20,  80 

P.    175),   557. 
>eely   v.    Schultz    (38    Wash.    699, 

80  P.  176),  557. 
Nefletberger  v.  Carner    ( 109  N.  Y. 

S.  747,  125  A.  D.  420),  234. 
Nekarda  v.  Presberger    ( 107  N.  Y. 

S.  897,  123  A.  D.  418),  29,  38, 

570,  653. 
Nelson   v.   Title   &   Trust   Co.    (52 

Wash.  258,  100  P.  730),  316. 
Nelson   v.    Webster    (83    Neb.    169, 

119  N.   W.   256),   587. 
Nesbit  V.  Helser   (49  Mo.  383),  24. 
Newell  V.  Hurlbut   (2  Vt.  351),  24. 
Newfield  v.  Oren  (60  111.  App.  350), 

17,   446. 
Newhall  v.  Pierce  (115  Mass.  457), 

890. 
New  Jersey,  State  of,  590. 
New    Kanawha    C,    &    M.    Co.    v. 

Wright    (163   Ind.   529,   72   N. 

E.  550),  22,  510,  615. 
Newlon  v.  Richey   (75  Iowa  91,  39 

N.  W.  209)^  743. 
Newman  v.  Lumley    ( 125  III.  App. 

382),  557. 
Newton  v.  Bronson  (13  N.  Y.  587), 

24. 
Newton    v.    Conness    ( [Tex.    C.    A. 

'08]    106  S.   W.   892),    15,   22, 

42,  290,   444,   502. 
Newton    v.    Dickson    ( [Tex.    C.    A. 

'09]   116  S.  W.  143),  446. 
Newton   v.   Donnelly    (9   Ind.   App. 

359,  36  X.  E.  769),  632a. 
New  York,  State  of,  590. 
Nicholas  v.  Jones   (23  Neb.  813,  37 

N.  W.  679),  449,  450, 
Nichols  V.  Whitacre   (112  Mo.  App. 

«92,    87  S.   W.   594),   41,    188, 

882,  974. 
Nicholson  v.  Harrison    <  120   N.   Y. 

S.   923),   446. 
Nicolai   v.  Lyon    (8   Ore.   56),   229, 

308. 
Nicoll  V.  Burke    (45   N.   Y.  Super. 

€t.   75),   583. 
Nielson  v.  Lee   (60  Cal.  555),  454. 
Nixon   V.    Hyserott    (5    Johns.    Ch. 

[N.  Y.]  68),  418. 


Kadler  v.  Pozorski    (124  Wis.  477, 

102  N.  W.  892),  290,  791. 
Nolan  V.  East  (132  111.  App.  634), 

557. 
Nolan  V.   Swift    (HI   Mich.   56,   09 

N.  W.  96),   17. 
Norman  v.  Hopper   (38  Wash.  415, 

80  P.  551),  38,   1092. 
Norman   v.   Reuther    (54   N.   Y.    S. 

152),   25   Misc.    161),   51,    157, 

290,   681,   885. 
Norman  v.  Roseman    (59  Mo.  App. 

682),  371. 
Norris  v.  Byrne   ( 38  Wash.  592,  80 

P.  808),  446. 
Norris  v.  Taylor   (49  111.  17),  130, 

291. 
Northupp  V.  Bathrick   (80  Neb.  36, 

113  N.  W.  808),  290,  315. 
Northupp  V.  Diggs    (128  Mo.  App. 

217,  106  S.  W.  1123),  215,  L44, 

1034,  1082.    . 
North   West  Packing   Co.  v.  Whit- 
ney   ([Cal.    App.    '07 J     89    P. 

981),  825. 
Norton  v.   Genesee  Nat.   Sav.,   etc., 

Ass'n.    (68  X.  Y.  S.  32,  57  A. 

D.  520),  475,  557. 
Norton  v.  Sjolseth   (43  Wash.  327, 

86  P.  573),  15,  22. 
Novakovitch    v.    Union    Trust    Co. 

(89  Ark.  412,  117  S.  W.  246), 

13. 


O'Brien    v.    Gilliland     (4    Tex.    C. 

A.  40,  23  S.  W.  244),  557. 
O'Callaghan    v.    Boeing    ( 72    Midi. 

669,   40  X.  W.  843),  939. 
O'Xeil  V.  Printz   (115  Mo.  App.  215, 

91   S.    W.    174),   914. 
(yXeill    V.    Sinclair    (153    111.    525. 

39  X.  E.  124),  124,  570. 
O'Reilly    v.    Keim     (54    X.    J.    Eq. 

418,  34  A.   1073),  18,  624. 
O'Shea  v.  Brill  ( 108  X.  Y.  S.  1020), 

446. 
OToole  V.  Dolan   (129  Cal.  471,  62 

P.  30),  445. 


Ixx 


TABLK   OF    CASES. 


[References  are  to  sections.] 


.  O'Toole    V.    Tucker     ( 40    X.    Y.    S. 

695,    17    Misc.   554),   449,   450, 

532,  557. 
Oarvin    v.    A.   G.    R.   Co.    (110   X. 

Y.  S.  493,  126  A.  D.  329),  454. 
Obenauer    v.    Solomon    (151    Mich. 

570,  115  X.  W.  696),  17,  827. 
Ober  V.  Stephens    (54  W.  Va.  354, 

46   S.   E.    195),  576. 
Ockenfells  v.  Moeller  (79  Mich.  314, 

44  X.  W.  790),  961. 
Odell   V.   Dozier    (104    Ga.   203,   30 

S.   E.   813),   477. 
Oldham   v.   Howser    ( 125    111.  App. 

543),  557. 
Oliver  v.  Katz    (131  Wis.  409,   111- 

X.  W.  509),  17,  61,  557,  809b, 

922,  926,  1080. 
Oliver    v.    Little    ( [Xev.    Sup.    '09] 

103  P.  240),  486. 
Oliver  v.  Morawetz    (95   Wis.   1,  69 

X.  W.  977 ) ,  587. 
Oliver  v.  Sattler   (233  111.  536,  86 

X.  E.   652),  547. 
Olson  V.  Jordan   (38  Minn.  466,  38 

X.  W.  485),  519,  523. 
Oppenheimer  v.  Barnett  (116  X.  Y. 

S.  44),  25. 
Ormsby  v.  Graham    (123  Iowa  202, 

98  X.  W.   724),  449,  503,  557, 

570. 
Ortmeier    v.    Ivory     (208    111.    577, 

70   X.    E.    665),    18,   243,   255, 

269. 
Orton  V.   Schofield    (61   Wis.   382), 

475. 
Orynski    v.    ^lenger     ( 15    Tex.    C 

A.  448,  39  S.  W.  388),  557. 
Osier  V    Moore    (8   Brit.   Col.   115), 

445. 
Oullahan  v.  Baldwin   ( 100  Cal.  648, 

35  P.   310),   302. 
Owen  V.  Kuhn   ( [Tex.  C.  A.  '03]  72 

S.   W.  432),  449. 
Owen   V.  Matthews    (123   Mo.  App. 

463,  100  S.  W.  492),  559. 
Owen  V.  Ramsey   (23  Ind.  App.  285, 

55  X.  E.  247),  276. 
Owens    V.    Wehrle    ( 14    Pa.    Super. 

Lt.  536),   13,  439. 
Owings    V.    Hall    ^9    Pet.    [U.    S.] 

607),  24. 


Packer  v.  Sheppard   ( 127  HI.  App. 

598),  380,  557,  576,  800. 
Pacific  Land  &  Trust  Co.  v.  Bloch- 

man    (11  P.  C.  L.  J.  24),  590. 
Page    V.    Voorhees     (16    X'.    Y.    S. 

101),  890. 
Paine  v.  Loeb   (96  Fed.   164,  37  C. 

C.  A.   434),  601,  857. 
Painter    v.    Kilgore     ( [Tex.    C.    A. 

'07]   101  S.  W.  809),  1024. 
Pallestine  v.  Mercer   ( 130  Mo.  App. 

605,    109   S.   W.    1037),    17. 
Palmer    v.    Durand    (70    X.    Y.    S. 

1105,  62  A.  D.  467),  896. 
Papagian   v.   Scott    (37  Pa.   Super. 

Ct.  560),  906a. 
Park   v.    Towne    ( [S.    D.    '08]    116 

X.  W.  1123),  880. 
Parker  v.  Estabrook   (68  X.  H.  349, 

44  A.  484),  462,  557.  628. 
Parker  v.  Merrell    (173   Mass.   391, 

53  X\  E.  913),  519,  557. 
Parker    v.    Xat.    Mut.    Bldg.,    etc., 

Ass'n.    (55  W.   Va.    134,  46  S. 

E.  811),  449,  458. 
Parker    v.    Walker    (86    Tenn.    560, 

8  S.  W.  391),  533,  563. 
Parkhurst  v.  Tyron    (119  X.  Y.  S. 

184),  13. 
Parks  v.   Hogle    (124   Iowa  98,   99 

X.  W.  185),  12,  32. 
Parsons  on  Cont.,   15,  24,   385. 
Pete  v.  Marsh    (65   111.  App.  482), 

446,  450. 
Patton  v.  Cook   (S3  Iowa  71,  48  X. 

W.  994),   15,  314. 
Patten    v.    Willis     (134    111.    App. 

645),  446. 
Payne  v.  Cooper   (16  Beavan  396), 

26,  263. 
Payne    v.    Williams.  (178    X.    Y. 
'  589,  70  X.  E.  1104).  818,  1097. 
Peabody    v.      Dewey    (51    111.   App. 

260),   454,    831a. 
Peace    v.    Rose    108    X.    Y.    S.    48, 

123  A.  D.  611),  33. 
Peach  River  Lumber   Co.  v.  Mont- 
gomery   ([Tex.  C.  A.  '08]    113 

S.  W.'87),  22,  446,  465. 


TABLE   OF    CASES. 


Ixxi 


[References  are   to   sections.] 


Pearsall    v.    Hirch    (14    N.    Y.    S. 

305),  389c. 
Pearson  v.  Mason    ( 120  Mass.  53 ) , 

460. 
Pearson  v.  Mason    (120  Mass.  53), 

460. 
Peavey  v.  Greer   ( [Minn.  Sup.  '09] 

121  X.  W.  875),  560,  1065a. 
Peck    V.    Harriott    (6    Serg.    &    R. 

[Pa.]    146),   17,  41. 
Peck  V.  Slifer    (122  111.  App.  21), 

445. 
Peckham  v.  Ashhurst  ( IS  R.  I.  376, 

28  A.  337),  24,  491. 
Pecos  Valley  Imp.  Co.  v.  Cecil  ( [N. 

M.  Sup.  '09]  99  P.  695),  36. 
Peeler    v.   Lathrop    (48   Fed.   780), 

660. 
Peet   V.   Sherwood    (47   Minn.    347, 

50  N.  W.  241,  929),  226,  557, 

716. 
Peet   V.    Sherwood    (43    Minn.   447, 

45   N.  W.   859),   533. 
Penter    v.   Staight    (1    Wash.    365, 

25  P.  469),  632a. 
Pentz    V.    Stanton    (10    Wend.    [X. 

Y.]    271),   601. 
Pepper    v.    George    (51    Ala.    190), 

359. 
Perkins  v.  Brainerd  Quarry  Co.  ( 32 

X.   Y.   S,   230,    11   Misc.   328), 

314. 
Perkins  v.  Cooper    (  [Cal.  Sup.  '90] 

24  P.  377),  34,  590. 
Perkins  v.  Kimberlin  ( 110  Mo.  App. 

661,  85  S.  W.  630),  50. 
Perkins  v.  Underhill   ( 103  X.  Y.  S. 

25,  118    A.    D.    170),   41,    146, 
290. 

Perry  v.  Bates    (100  X.  Y.  S.  881, 

115   A.  D.   337),  242. 
Pescia  v.  Haims   (99  X.  Y.  S.  421, 

50  Misc.  550),  210. 
Peters   v.    Anderson    (88   Va.    1051, 

23  S.  E.  754),  115. 
Peters  v.    Anderson    (88   Va.   1051, 

14    S.   E.    974),   500,   506,    840, 

85^. 
Peters  V.  Farnsworth    (15  Vt.  155), 

26,  43,   417. 

Peterson  v.  Hall  (61  Minn.  268,  63 
N.  W.  733),  283. 


Pfang    V.    Humberg    (30    Ohio    Cir. 

Ct.  711),  537. 
Pfanz  V.   Humburg    (82   0.   St.  ■  t ) , 

119. 
Phelan  v.   Gardner    (43   Cal.   306), 

454. 
Phelps  V.  Brown    (95   Cal.  572,  30 

P.  774),  630. 
Phelps  V.  Prusch    (83  Cal.   626,  23 

P.   1111),  297,  454,  533. 
Phelps   V.   Hale    (43   Colo.   255,   95 

P.   925),   17. 
Phelps  V.  Miller    ( [Tex.  C.  A.  '04] 

83  S.  W.  218),  728b. 
Philip,    Calvin    &    Son    v.    Langlow 

([Wash.  Sup.  '09]  104  P.  610), 

430. 
Phillips  V.  Belden   (2  Edw.  Ch.  [N. 

Y.]   1),  18. 
Phillips  V.  Dowhower  ( 103  111.  App. 

50),  557. 
Phillips   V.   Hazen    ( 122    Iowa   475, 

98  X.  W.  305),  894. 
Phillips  V.  Jones  ( 39  Ind.  App.  626, 

80  X.  E.  555),  606. 
Phillips   V.    Roberts    (90    111.   49^), 

513. 
Phinney  v.  Cheesebro   (84  X.  Y.  S. 

449,  87  A.  D.  409),   17,  446, 
Phinizy  v.  Bush    (129   Ga.  479,  59 

S.  E.  259),  24,   479,  557,  576, 

726. 
Phister  v.  Gove   (48  Mo.  App.  455), 

234,  430. 
Pier  V.  Duff  (63  Pa.  St.  59).  836. 
Pierce  v.  Johnson    (34  Conn,  264). 

291. 
Pierce  v.  Xichols   ([Tex.  C.  A.  '08  | 

110  S.  W.  206),  502,   656. 
Pierce  v.  Powell   (57  111.  323),  297. 
Pierce  v.  Thomas    (4  E.  D.   Smith 

354),   17.  70,  399,  443. 
Pierce  v.  Truitt   ([Pa.  Sup.  '88]  12 

Atl.  661),   449. 
Pinkerton   v.    Hudson    ( [Ark.    Slip. 

'08]   113  S.  W.  35),  420a,  533. 

700a. 
Pile  V.  Carpenter  (118  Tenn.  288, 

99  S.  W.  360),  576. 

Pinch   V.   Morford    (142    Mich.    63, 
105  N.  W.  22),  578. 


Ixxii 


TABLE   OF    CASES. 


[References  are   to  sections.] 


Pineville  v.  Hollingsworth   (21  Ky. 

L.  R.  899,  53  S.  W.  279),  25. 
Pinnock    v.    Clough    (16    Vt.    500), 

35,  368. 
Pipkin  V.  Home    ( [Tex.  C.  A.  '02] 

68  S.  W.  1000),  12,  17. 
Pittsbg.,    etc.,    R.    Co.    v.    Gazzam 

(32  Pa.  St.  340),  24. 
Planer  v.  Equitable  L.  A.  Soc.  ( [N. 

J.   Eq.    '97]    37    A.    668),    307, 

372. 
Plant  V.  Thompson    (42   Kan.  664, 

22  P.  726),  61,  502. 
Piatt    V.    Baldwin    (2    N.    Y.    City 

281),  314. 
Piatt  V.  Jahr    (9   Ind.  App.  58,  36 

N.   E.  294),  447. 
Plotner    v.    Chillian     ( [Okla.    Sup. 

'08]  95  P.  775),  371,  665. 
Plumb  V.  Milk    (19   Barb.   [N.  Y.] 

174),  707. 
Pochin  V.  Knoebel   (63  Neb.  768,  89 

N.  VV.  264 ) ,  356. 
Polak    V.     Ilosenzweig    Realty     Co. 

(116  N.  Y.  S.  38),  805a. 
Pollard    V.    Banks     (67    Mo.    App. 

187),   113,   136. 
Pollard  V.  Sayres   ( [Colo.  Sup.  '08] 

98   P.    816),    12. 
Pollatschek  v.  Goodwin    (40  X.  Y. 

S.    682,    17    Misc.    587),    475, 

708. 
Pomerici  v.  Rosenbloom  (120  N.  Y. 

S.   756),  454. 
Pomeroy  v.   Wimer    ( 167   Ind.   440, 

78   N.   E,    233),   963. 
Pope    V.    Beale     (108    Mass.    561), 

576. 
Pope  V.  Caddell   (31  Ky.  L.  R.  412, 

102  S.  W.  327),  697. 
Porter  v.  Hollingsworth    (62  N.  Y. 

S.  796,  30  Misc.  628).  149. 
Portland  v.  O'Neill  (1  Oregon  218), 

8. 
Potts  V.  Aechtermacht    (93  Pa.   St. 

138),  513a,  616,  626. 
Potvin    V.    Curran     (13    Neb.    302, 

14  N.  W.  400),  449,  450,  557. 
Powell    V.    Anderson    (4    N.    Y,    S. 

706,  15  Daly  219),  13,  141,  439, 

444,  445,  447. 


Powell  V.  Binney   (54  Neb.  690,  74 

N.  W.   1073),  23. 
Powell    V.    Gassam     ( 18    B.    Mon. 

[Ky.]  179),  24. 
Powell  V.  Lamb   (1   N.  Y.  S.  431), 

141,  444,  445. 
Power    V.    Immigration    Land    Co. 

(93  Minn.  247,  101  N.  W.  161), 

10. 
Power  V.  Kane    (5  Wis.  265),  375, 

449. 
Powers  V.  Black   (159  Pa.  St.   153, 

28   A.   133),  35,  314,  558. 
Powers    V.    Bohnslow    ([Neb.    Sup. 

'09]    120  N.  W.  942),  59. 
Pratt   V.    Banks     (12    Phila.    378), 

626. 
Pratt   V.    Hotchkiss    (10    111.    App. 

603),   716. 
Pratt  V.  Patterson    (7  Phila.   [Pa.] 

135),    136,    449. 
Pratt  V.  Patterson   ( 12  Phila.  [Pa.] 

460,  112  Pa.  St.  475),  41,  314, 

557. 
Prewitt  V.  West   (22  Ky.  L.  R.  492, 

55  S.  W.  884),  998. 
Price   V.   Walker    ([Ind.   App.   '09] 

88  N.  E.  78),  590. 
Prince  v.   8th  St.    Baptist  Ch.    (20 

Mo.  App.  332),  576. 
Pringle   v.    Dunn     (37    Wis.    449), 

359. 
Pringle  v.  Spalding    (53  Barb.    [N. 

Y.]    17),   10. 
Proudfoot    V.    Wightman     (78    111. 

553),  295,  314,  572. 
Provident  T.  Co.  v.  Darraugh    ( 168 

Ind.  29,  78  N.  E.  1030 ) ,  15,  22, 
■       79,  523,  557,  840,  859. 
Pugsley  V    Murray   (4  E.  D.  Smith 

[N.  Y.l   245),'  51,  290. 
Purdy  V.  Wilson  ( 130  Mo.  App.  150, 

108  S.  W.   1124).  454. 
Putnam    v.    Howe    (39    Minn.    363, 

40  N.  W.  258).   17.  446. 
Putter  V.  Berger   (88  N.  Y.  S.  462, 

95   A.   D.   62),   454. 
Putzel   V.   Wilson    (2  N.  Y.   S.   47, 

49  Hun  220),  223,  570. 


TABLE   OF    CASES. 


Ixxiii 


[References  are  to  sections.] 


Quale  V.  Hazel    ( 19  6.  D.  483,  104 

N.  W.  215),  817a. 
Quinby    v.    Tedford    (4    Colo.    App. 

210,  35  P.  276),  17,  446. 
Quinn   V.   Burton    ( 195    Mass.    277, 

81  N.  E.  257),  371. 
Quist  V.  Goodfellow   (99  Minn.  509, 

110  N.  W.  65),  15,  42,  290,  799. 
Quitzon  V.  Perrin  ( 120  Cal.  255,  52 

P.  632),  557. 


Rabb    V.    Johnson     (28    Ind.    App. 

565,  63  N.  E.  580 ) ,  369,  675. 
Rabinowitz  v.  Pizer    (108  N.  Y.  S. 

994),  559. 
Rae  V.  Kane   (106  N.  Y.  S.  47,  121 

A.   D.   494),  444. 
Rae,  W.  P.  Co.  v.  Kane   (116  N.  Y. 

S.   739),  33. 
Raisin  v.  Clark   (41   Md.  158),  51, 

290. 
Railway   Co.   v.   McCarthy    (96   U. 

S.  258,  267),  840. 
Rake  v.  Townsend   (102  N.  W.  499 

[Iowa  Slip.  '05]),  409. 
Raleigh   R.   E.  &  T.  Co.  v.  Adams 

( 145  N.  C.  161,  58  S.  E.  1008), 

15,  290,  557. 
Ramsey  v.  West  (31  Mo.  App.  676), 

17,   446,   549. 
Rand    v.    Conkrite     (64    111.    App. 

208),  307. 
Randruff    v.    Schroeder    (46   N.    Y. 

S.  943,  21  Misc.  52),  17,  446. 
Raner's   Law   &   Coll.   Co.   v.   Brad- 
bury   (3   Cal.  App.  256,  84  P. 

1007),    314,   869. 
Ranger  v.  Leo    (121  N.  Y.  S.  328), 

43. 
Rank  v.   Garvey    (66  Neb.   767,  92 

X.  W.   1025),  623,   797. 
Ranney  v.  Donavan    (78  Mich.  318, 

44  N.  W.  276),  25,  475,  557. 
Ransom  v.  Weston    (110  Mich.  240, 

68   N.   W.    152),  454. 


Rathbun  v.  McLay   (76  Conn.  308, 

56  A.  571),  10. 
Rattman  v.  Wasson   (5  Kan.  552), 

10. 
Ratts  V.  Shepherd    (37  Kan.  20,  14 

P.  496),  61,  502. 
Ravenscrof t    v.    Chesmore    ( 108    N. 

W.  465   [Iowa  Sup.  '06]),  180. 
Read  v.  Hank    (147  Mich.   42,   110 

N.  W.   130),  446. 
Read  v.  Riddle   (48  N.  J.  Eq.  359, 

7  A.  487),  383. 
Reams  v.   Wilson    (147   N.   C.   304, 

60  S.  E.  1124),  15,  587. 
Reardon  v.  Washburn  (59  111.  App. 

161),  37,  632a. 
Red-Cypress    Lumber   Co.    v.   Perry 

(118   Ga.   876,   45   S.  E.  674), 

314,  709. 
Reddin  v.   Dam    (64  N.  Y.   S.  611, 

51  A.  D.  636),  889,  893.  896. 
Redmond  v.  Hank    (137  Iowa  228, 

114  N.  W.  885),  314,  706. 
Reed   v.   Light    (170   Ind.    550,   85 

N.  E.  9),   18,  783. 
Reeder  v.  Jones    ([Del.  Super.  '02] 

65    A.    571),    576. 
Reeder  v.  Butler  ( 19  Pa.  Super.  Ct 

604),   367. 
Reed's  Ex.  v.  Reed  (82  Pa.  St.  420), 

290,  291. 
Rees    V.    Medlock     (27    Tex.    120), 

592. 
Rees  V.  Pellow   (97  Fed.  167,  38  C. 

C.  A.  94),  15. 
Rees    V.    Spruance     (45    111.    308), 

482. 
Reese  v.  Garth   (36  Mo.  App.  641), 

678,  685. 
Reese    v.    Medl(x;k    (27    Tex.    120), 

24,  26,  57,  167,  203,  337,  592. 
Reeves  v.  Vette   (62  Mo.  App.  440), 

454. 
Reichard  v.  Wallach    (91   N.  Y.  S. 

347),  449. 
Reid  V.    McNerny    (128    Iowa   350, 

103  N.  W.  1001),  175,  896. 
Reimer  v.  Rice   (88  Wis.  16,  69  N. 
W.  450),  557. 


Ixxiv 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Reishus-Remer  Land  Co.  v.  Bennez 
(91  Minn.  401,  98  X,  W.  186), 
15,   22,   24,  450,   490,   682. 
Rembolz   v.   Bennett    (86   Mo.   App. 

174),   881. 
Remington  v.  Sellers   (8  Kan.  App. 

806,  57   P.  551),   533. 
Rempel   v.   Hopkins    ( 101    Minn.  3, 

111   N.   VV.   385),   640. 
Renwick  v.  Bancroft   (56  Iowa  527, 

9  X.  W.  367),  11,  557. 
Reynolds-McGuiness    Co.    v.    Green 
(78   Vt.   28,   61   A.   556),   309, 
557. 
Reynolds    v.    Toch    (121    N.    Y.   S. 

85),  558. 
Reynolds   v.   Tomkins    (23   W.   Va. 

229),  444. 
Rhea    v.    Puryear     (26    Ark.    344), 

314. 
Rhode    V.   Marquis    (135   Mich.   48, 

97  X.  W.  53),  40,  314. 
Rice  V.  Mayo   (107  Mass.  550),  557. 
Rice  V.  McLaren    (42  Me.  157).  24. 
Rice  V.  Xeuman   (115  X.  Y.  S.  83), 

209,  712. 
Rice   V.    Tavernier    ( 8    Minn.    248 ) , 

17,   18,  26,  340. 
Rice  V.  Wood   (113  Mass.  133).  314. 
Richards  v.   Gaskell    (39  Kan.  428, 

18   P.   494),   285. 
Richards  v.  Jackson    (31  Md.  250), 

449,    458. 
Richards  v.  Richman    (5   Pennewill 

[Del.]  558,  64  A.  238),  879. 
Richardson    v.    Babcock    (119    Wis. 

141,  96  X.  W.  554),  735. 
Richardson  v.   Brix    (94   Iowa   626, 

63   X.   W.   325),   558,   576. 
Richardson  v.  Hoyt  (60  Iowa  68,  14 

N.  W.   122),' 930. 
Ricker   v.   Post    (110   X.   Y.   S.   79, 

125  A.  D.  607),  41,  702. 
Rider  v.  Pell  (51  X.  Y.  669),  468. 
Rieger  v.  Biggs   (29  Mo.  App.  42 IK 

462,  532,^507. 
Rieger    v.    Merrill     (125    Mo.    App. 

541,  102  S.  W.   1072),  65,   182, 

1023. 
Rigdon  V.  Moore    (226   111.  382,  80 

N.  E.  901),  446. 


Rigdon    V.    Strong     (128    111.    App. 

447),  292,  446. 
Riggs    V.    TurnbuU    (105    Md.    135, 

66  A.   13),   15,  292. 
Rightberg  v.  Carlton   ( 108  X.  Y.  S. 

1067,   58   Misc.    186),   208. 
Riley   v.    Bell     (120    Iowa    618,    95 

N.  W.    170),  315. 
Riley  v.  Minor    (29  Mo.  439),  590. 
Ringgold    V.    Rhodes    (132    Pa.    St. 

189,  18  A.  1118),  889. 
Ringo   V.    Binns    (10    Pet.    [U.    S.] 

269),    345. 
Ripy  V.  Cronan   ( [Ky.  Ct.  App.  '09] 

115  S.  W.  791),  290. 
Risley   v.   Beaumont    (71    X.   J.   L. 

372,   59    A.    145),   631. 
Ritchie   v.   Judd    (137    111.    453,   27 

N.  E.  682),  35,  259. 
Riverview   Land   Co.   v.    Dance    (98 

Va.  239,  35  S.  E.  720),  324. 
Roach  V.  Coe   ( 1  E.  D.  Smith  175), 

18. 
Bobbins  v.  Butler   (24  111.  428),  58. 
R.   I.  &   St.  L.  R.   V.   Shumick    ( o5 

111.  223).  74. 
Raeder  v.  Butler  ( 19  Pa.  Super.  Ct. 

604),  367,  576,  889. 
Robert   v.   Sire    (67    X.   Y.   S.   860, 

33   Misc.    755),    1070. 
Roberts    v.    Barnes     (1    Cab.    &    E. 

[Eng.]   336),  299. 
Roberts    v.    Button    (14    Vt.    195), 

307b. 
Roberts    v.    Hilton    Land    Co.     (45 

Wash.    464,   88   P.   946),   24. 
Roberts  v.  Holliday    (10  S.  D.  576, 

74  X.  W.    1034),  52,  300. 
Roberts   v.  Kinnons    ( 65  Miss.  332, 

3  S.  736),  533. 
Roberts  v.  Matthews   (77  Ga.  45S), 

239. 
Robertson  v.  Cloud   (47  Miss.  208), 

15. 
Robertson  v.  Vasey   ( 125  Iowa  526, 

101    X     W.    271),    996,    1011, 

1081. 
Robertson  v.  Western  M.  &   F.  Ins. 

Co.  (36  Abb.  [X.  Y.]  Dec.  673), 

290. 


TABLE   OF    CASES. 


Ixxv 


[Iveferences  tire   to   sections.] 


Robinson    v.    Clock    (55    X.    Y.    S. 

976,  38  A.  D.  67),  314,  706. 
Robinson  v.  Easton   (93  Cal.  80,  28 

P.  796),  642a. 
Robinson  v.  Kindley    (36  Kan.  157, 

12  P.  587),  560. 
Robinson  v.  Stewart  (97  Mich.  454, 

56   X.   W.   853),    285. 
Roby  V.  Cassitt  (78  111.  638),  24. 
Roche  V.  Pennington    (90  Wis.   107, 

62   X.   W.    946),    776. 
Roche    V.    Smith     (176    Mass.    595, 

58  X.  E.  152),  156,  163,  533. 
Rockwell    V.    Hurst     (13    X.    Y.    S. 

290),  234,  430. 
Rockwell  V.  Xewton  ( 44  Conn.  333 ) , 

156. 
Rodenbrock  v.  Gress    (74  Xeb.  409, 

104  X.   W.  758),  587. 
Rodman    v.    Manning     ( [Ore.    Sup. 

'09]    99    P.    657,    1135),    7,    8, 

314,  421a,  564. 
Rogers   v.    Genung    (X^.    J.    Err.    & 

App.   '09]    74  A.  473),   559. 
Rogers    v.    Evan.    Bap.    Ben.,    etc., 

Soc.    (168  Mass.  592,  47  X.  E. 

434),    889,    909. 
Rogers   v.    Lockett    (28   Ark.   290), 

345. 
Rohkohl    V.    Sussman     (113    X.    Y. 

S.  586,  61  Misc.  246),  19,  499a. 
Rohner  v.  Lanish   (60  X.  Y.  S.  543, 

29  Misc.  315),  33. 
Romans  v.  Thew    ([Iowa  Sup.  '09] 

120  X.  W.  629),  970a. 
Roome    v.    Robinson    (90   X.   Y,    S. 

1055,  99  A.  D.  143),  290,  630, 

915. 
Rose  V.  Hayden  (35  Kan.  106),  595. 
Rosenberg   v.   Smith    ( 55   X.    Y.    S. 

528,  25  Misc.  774).  460. 
Rosenthal   v.   Drake    (82   Mo.    App. 

358),  314. 
Rosenthal   v.   Gunn    (119   X.   Y.   S. 

1651,  225a,  240a,  628. 
Rosenstein   v.   Bogel    (108  X'.  Y.  S. 

957,   124   A.   D.  527),  557. 
Ross    V.    Carr    ([X.    M.    Sup.    '09] 

103    P.    307),    475,    640,    695a, 

740a,  771. 


Ross    V.    Craven    ([Xeb.    Sup.    '09] 

121  X.  W.  451),  17. 
Ross  V.   Decker    (6»  X\   Y.   S.   790, 

34  Misc.   168),  765,   1055. 
Ross  V.  Fickling   (11  App.  Cas.  [D. 

€.]    442),  28,   41,  57,  464.  607. 
Ross   V.   Muskowitz    (100   Tex.    434, 

100   S.   W.  768),   775. 
Ross  V.  Smiley    ( 18  Colo.  App.  204, 

70   P.   766),   557. 
Rothenburger  v.  Turner   (30  Ky.  L. 

R.  1018,  99  S.  W.  1150),  518. 
Rothenberger  v.  Schoninger  (30  Ky. 

L.    R.    1018,    99    S.    W.    1150), 

896,  897. 
Rothschild  v.  Burritt   (47  Minn.  28, 

49   X.   W.  393),  557,  683,  730, 

1078a. 
Rothschild's  Est.,  In  re   (118  X.  Y. 

S.   654,   63  Misc.   615),  34. 
Rothwell  V.   Gibson    (121   Mo.  App. 

279,  98   S.   W.  801),  590. 
Rottman  v.  VVasson    (5  Kan.   552), 

10. 
Rounds   V.  Alee    (116   Iowa  345,  89 

X.    W.    1098),    446,    557,    784, 

896. 
Roush    Y.    Loeffler     (18    'Cir.     €t. 

[Ohio]    806,   6    Ohio   Cir.    Dec. 

760),  446,  449,  450. 
Rowan  v.  Hull    (55  W.  Va.  335,  47 

S.   E.   92),    15,    16,   21,   22,   72, 

299. 
Rowan  v.  Hyatt  (45  X.  Y.  138),  24. 
Rowe  V.  Stephens    (53  X.  Y.  621), 

51,   290. 
Rowland  v.  Hall    (106  X.  Y.  S.  55, 

121  A.  D.  459),  18,  300.  569. 
Royce  v.   Allen    (28   Vt.   234),   291, 

307b. 
Royster      v.      Magaveny      (9       Lea 

'  [Tenn.]    148)^   449*   450. 
Rubens   v.   Mead    (121   Cal.    17,   53 

P.  432),  229,  321,  630,  787. 
Rubidoeux   v.  Parks    (48  Cal.  215), 

708. 
Rucker    v.    Hall    (105   Cal.   225,   3S 

P.   962),   42,   200. 
Ruckman  v.  Bergholz    (37  X.  J.  L. 

437),   389a,   576,   814. 


Ixxvi 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Ruckman    v.    Bergholz     (38    N.    J. 

L.    631),    814,    900. 
Runck    V.    Dimmick     ( [Tex.    C.    A. 

'08]    111  S.  W.  779),  85,  1077. 
Rundle   v.    Cutting    (18   Colo.    337, 

32  P.   994),   18,  53. 
Rundle    v.    Staats     ( 19    Colo.    App. 

164,  73   P.   1091),  234. 
Runyon    v.    Wilkinson     (57    N.    J. 

L.  420,  31  A.  390),  33,  85. 
Rupp  V.  Sampson  ( 16  Gray  [Mass.] 

398),  557. 
Russell    V.    Andros     (79    Wis.    108, 

48  N.  W.  117),  520. 
Russell  V.  Hurd   (113  111.  App.  63), 

717. 
Russell    V.    Poor     ([Mo.    App.    '08] 

115  S.  W.   1),  689,  994a. 
Russell    V.    Poor    ([Mo.    App.    '08] 

119    S.    W.    433),    446,    934b, 

953a. 
Russell  V.  Russell    (36  N.  Y.  581), 

26,  263. 
Rutenberg  v.  Main    (47  Oal.   213), 

18. 
Rutherford    v.    Selover     (87    Minn. 

495,   92   N.  W.   413),   736. 
Rutledge    v.    Neely     (99    Mo.    App. 

384,  73  S.  W.  359),   1098. 
Ryan  v.  Kahler    ([Tex.   C.  A.   '98] 

46  S.  W.  71),  291,  314,  558. 
Ryan  v.  Ky.,  etc.,  R.  Co.    (Ill  Mo. 

456,   20   S.   W.   234),   813. 
Ryan    v.    Martin     (165    Fed.    765), 

572. 
Ryan  v.  McGee    (2  Ma«key  [D.  C] 

17),  18. 
Ryan   v.   Page    (123    Iowa   246,   98 

N.  W.  768),  889,  893. 
Ryan   v.   Page    (134    Iowa  60,    111 

N.  W.  405),  502,  750. 
Ryan  v.  Starr   (214  Pa.  318,  63  A. 

704),    1095. 
Ryer   v.   Turkel    ( [N.   J.   Sup.   '08] 

70   A.   68),   5. 
Ryer  v.   Winter    ( [N.  J.  Sup.   '09] 

72  A.  84),  590. 


S 


St.    Felix    V.   Green    (34   Neb.   800, 

52  N,  W.  821),  446,  685. 

St.    L.    S.    W.    R.    Co.    V.    Irvine 

([Tex.    C.    A.    '05]    89    S.    W. 

428),  739,  1006. 
Sachsel       v.    Farrar    (35    111.   App. 

277),  658. 
Saddle    v.    Evans    (4    Burr    [Eng.] 

1984),   385. 
Sain  V.  Rooney   ( 125  Mo.  App.  176, 

101  S.  W.  1127),  669,  704. 
Sallee  v.  McMaurj'    (113   Mo.  App. 

253,    88    S.    W.    157),    22,    41, 

446,  450,  557,  611,  612,  979. 
Samuel    v.     Luckenbach     (205    Pa. 

428,  54  A.  1091),  443. 
Sanchez    v.    Yerba     (8    Colo.    App. 

490,  97  P.  205),  801a. 
Sand  v.  Kenny  Mfg.  Co.   (113  N.  Y. 

S.  972),  693a. 
Sandefur    v.   Hines    (69    Kan.    168, 

76  P.  444),  557. 
Sanger    v.    Wilson     (52    111.    App. 

117),  482. 
Sanderson    v.    Wellsford    ( [Tex.   C 

A.   '09]    116    S.   W.   382),   694, 

880a,  1112. 
Sargent  v.  Story    ([Tex.  C.  A.  '01] 

61  S.  W.  977),  61. 
Saterthwaithe  v.  Groodyear   ( 137  N. 

C.  302,  49   S.  E.  205),  14. 
Saterthwaithe  v.  Vreeland  (48  How. 

Pr.   [N.   Y.]   508,  3   Hun   152), 

22. 
Sattler  v.  Oliver  (138  111.  App.  210, 

84  N.  E.  652),  307. 
Saule  V.   Ryan    ( [Tenn.   C.   A.   '99] 

53  S.  W.  977),  558,  576. 
Sawyer  v.   Bowman    (91   Iowa   717, 

59  N.  W.  27),  743. 
Sayre   v.    WMlson    (86    Ala.    151,    5 

S.  157),  15,  37,  557,  632a,  729. 
Scaling    v.     Knolin     (94    111.     App. 

443),   41. 
Schatzberg  v.  Grosworth    (84  N.  Y. 

S.   259),   446,   712. 
Schaue    v.    Starch    (107    N.    Y.    S. 

26,    56    Misc.    484),    148,    447, 

643. 


TABLE   OF    CASES. 


Ixxvii 


[References  are  to  sections.] 


iSchegal  V.  Allerton   (65  Conn.  260, 

32   A.   363),   61,   502. 
Scherer  v.  Colwell  (87  N.  Y.  S.  490, 

43  Misc.  390),  558. 
Schleifenbaum     v.     Rundboken     (81 

Conn.  623,  71  A.  899),  314. 
Schlenski  v.  Hillman   (111  N.  Y.  S. 

696),  363a. 
Schlevinger   v.   Jud.    (70   N.   Y.    S. 

616,   61    A.   D.   453),    152,   454, 

670. 
Schmidt  y.   Chittenden   ( [Cal.  App. 

'08]  98  P.  48),  17,  18. 
Schmidt    v.    Keeler    (63    111.    App. 

487),   557. 
Schnitzer   v.    Price    (106    N.    Y.   S. 

767,  122  A.  D.  409),  1053b. 
Schoenman  v.  Whitt  ( 136  Wis.  332, 

117  N.  W.  851),  20. 
Schomberg  v.  Auxier   (101  Ky.  292, 

19    Ky.    L.    R.   548,    40    S.    W. 

911),  29,  407,  579,  903. 
Schubert  v.   Kaplin    (109  N.  Y.  S. 

729),   1078. 
Schulte    V.    Mehan    (133    111.    App. 

491),   195,  438,  609. 
Schultz  V.   Goldman    ( 7    Ariz.    279, 

64  P.  425),  196,  500a. 
Schultz  V.   Griffin    (121   N.  Y.   294, 

24    N.    E.    480),    43,    59,    328, 

428,  558. 
Schultz  V.  Griffin   (26  N.  Y.  S.  713, 

5   Misc.  499),   13. 
Schultz  V.  Zelmar   ( [Tex.  Civ.  App. 

'08]    111   S.  W.  776),  446,  512. 
Schuster   v.    Martin    (45    111.   App. 

481),   15. 
Schwartze  v.  Yearly  (31  Md.  270), 

61,  446,  450,  454,  502. 
Scott    V.   Clark    (3    S.    D.    486,    54 

N.  W.  538),  449,  450. 
Scott  V.  Dillon    (109  N.  Y.  S.  877, 

58  Misc.  522),  677. 
Scott   V.    Gage    (16    S.   D.    285,   92 

N.  W.  37),  59,  451. 
Scott   V.    Lloyd    (19   Colo.    401,    35 

P.    733 )i    446,    489,    545,    557, 

581. 
Soott  V.  Patterson   (53  Ark.  49,  13 

6.  W.  419),  362,  446,  454. 


Scott    V.    Stewart     (115    111.    App. 

535),  557. 
Scott  V.  Woolsey   (47  N.  Y.  S.  320, 

20   A.   D.   541),  226a. 
Scottish  Am.  Mtge.  Co.  v.  Davis  ( 96 

Tex.    504,    74    S.    W.    17,    18), 

567. 
Scribner  v.  Collar   (40  Mich.  375), 

61,  290,   1088. 
Scribner  v.  Hazeltine   (79  Mich.  37, 

44  N.  W.  618),  958. 
Scull    V.    Brontim     (55    N.    J.    Eq. 

489,  37  A.  740),   18. 
Seabury   v.    Fidelity  Ins.,   etc.,   Co. 

(205  Pa.  St.  234,  54  A.  898), 

460. 
Sears   v.   Forbes    (122  Ind.   358,   23 

N.  E.   773),  261,  659. 
Seattle  Land  Co.  v.  Day    (2  Wash. 

451,  27  P.   74),   482,   535,  570, 

584. 
Sechrist  v.  Atkinson   (31  App.  Dec. 

[D.   C]    1),   42,    1078a. 
Seery  v.  Socks   (29  111.  313),  18. 
Seff  V.  Brotman    (108  Md.  278,   70 

A.  106),  703. 
Seidman  v.  Banner  (99  N.  Y.  S.  862, 

51    Misc.    10),    454,    557,    911. 
Segar  v.  Edwards    (11  Leigh   [Va.] 

213),   389b. 
Selby  V.  Matson   (137  Iowa,  97,  114 

N.  W.  609),  52. 
Selevar    v.    Isle   Harbor    Land   Co. 

(91  Minn.  451,  98  N.  W.  344), 

314. 
Semple    v.    Rand     (112    Iowa,    616, 

84  N.  W.  683),  446,  616,  1054. 
Senior  v.  Fitzgerald    (119  N.  Y.  S. 

745),  558. 
Sewell    V.    Collison    (108    N.   Y.    S. 

25,   123  A.  D.  586),  795. 
Seymour     v.     St.     Luke's     Hospital 

(50    N.    Y.    S.    989,   28    A.    D. 

119),   41,   462. 
Seymour    v.    Slide,   etc.,    Gold   Min. 

Co.    (42    Fed,    633),   844. 
Seymour  v.  WychofT  ( 10  N.  Y.  213) , 

24. 
Sexton  v.  Goodrich    (131  Wis.  146, 

111  N,  W.  206),  1062. 


Ixxviii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Shainwald    v.    Cady     (92    Cal.    83, 

28  P.  101),  460. 
Shanks    v.    Michael     (4    Cal.    App. 

553,  88  P.  59(3),   150,   175,  557. 
(Shannon    v.    Marmaduke     ( 14    Tex. 

217),   389b. 
Shannon    v.    Potts     (117    111.    App. 

80),  44G. 
Shapiro    v.    Xadler     (99    N.    Y.    S. 

879,  51  Misc.  13),  41,  272,  543, 

557. 
Shapiro   v.   Shapiro    (103   N.   Y.   S. 

305,   117  A.  D.  817),  178,  306, 

444,  445. 
Shapiro   v.   Shapiro    (110   N.   Y.   S. 

11,  125  A.  D.  608),  1105. 
Sharp  V.  Hoopes    (  [N.  J.  Sup.  '06] 

64  A.  989),  19,  433. 
Shapler  v.  Scott   (85  Pa.  St.  329), 

576. 
Sharpley   v.   Moody    ( 152   Ala.   549, 

44   S.    650),   291,   557. 
Shearer     v.     Guardian     Trust     Co. 

([Mo.    App.    '09]     116    S.    \V. 

456),  607. 
Sheffield  v.  Ladue    (16  Minn.  388), 

18. 
Sheinhouse  v.  Klueppel  (81  N.  Y.  S. 

116,  80  A.  D.  445),  557. 
Sheltin  v.  Lundin   ( [Ind.  App.  '10] 

90  X.  E.  387),  446. 
Shepard   v.    Brown    (9    Jur.    N.    S. 

[Eng.]    195,   78   T.   Rep.   N.   S. 

491),  630. 
Shepard    v.    Hadden    (29    N.   J.    L. 

334),    15,   446. 
Shepard  v.   Hill    (6  Wa«h.   605,   34 

P.   159),  314,  371. 
Shepard-Teague      Co.      v.      Herman 

([Cal.   App.   '10]    107   P.   622), 

188. 
Shepherd    v.    Underwood     (55     111. 

475),   642c. 
Sherburne    Land    Co.    v.    Ells     (92 

Minn.  114,  99  N.  W.  419),  543. 
Sherburne  Land  Co.  v.  Sexton   (13) 

Iowa,    85,     106    X.     W.    378), 

557. 
Sherwin  v.  O'Conner   (24  Xeb.  603, 

39  X.   W.  620),   1054. 


Shields    v.    Sterret     ([X.    J.    Sup. 

'09]    71  A.   1129),  21. 
Shipherd    v.    Field     (70    111.    438), 

229,  402. 
Shipman  v.  Freeh   (1  X.  Y.  S.  67), 

445,  446,  657,   896. 
Shipman    v.    Freeh     ( 15    Daly,    15, 

3    X.    Y.    S.    932),    777,    778, 

835. 
Shipman    v.    Scott    (12    Civ.    Proc. 

Rep.  [X.  Y.]  18,  14  Daly,  233), 

657. 
Shipman  v.  Wilkeson  (112  X.  Y.  S. 

895),  557,  558. 
Shirley  v.  Coffin   ([Tex.  C.  A.  '09] 

121   S.   W,   181),  572. 
Shistler's    Est.    (2    Pa.    Dist.   588), 

15,  46. 
Shober  v.   Dean    ([Mont.   Sup.   '09] 

102  P.  323),  69a. 
Shope  V.  Campbell   (1  Silv.  [X.  Y.] 

■Supreme  Ct.  474,  5  Supp.  346 ) . 
Short  V.  Millard  (08  111.  292),  454. 
Short  V.  Willing  ( 1  Wkly.  Xot.  Cas. 

[Pa.]   460),  312. 
Showaker  v.  Kelley   (21   Pa.  Super. 

Ct.  390),  369,  454. 
Shropshire    v.   Adams    ( 40    Tex.   C. 

A.  339),  89  S.  W.  448),  644. 
Shropshire  v.  Frankel   (91  X.  Y.  S. 

79,  45  Misc.  616),  249. 
Shultz    V.    Eberle     (124    Wis.    594, 

102  X.  W.  1055),  888. 
Sibbald  v.   Bethlehem  Iron  Co.    (83 

X.  Y.  S.  378),  449,  450,  557. 
Siegel    V.   Gould    (7   Lans.    [X.   Y.] 

177),  475,  557. 
Siegel  V.  Rosenzweig   (114  X.  Y.  S. 

179,  129  A.  D.  547),  290,  559. 
Siemsson   v.    Homan    ( 35   X'eb.   892, 

53  :iN.  W.  1012),  557. 
Sievers  v.  Griffin  (14  III.  App.  63), 

446. 
Silberberg  v.  Chipman   (42  Colo.  20, 

93  P.  1130),  234,  557. 
Simpson  v.   Carson    (11   Ore.  361,  8 

P.    325),    22. 
Simpson    v.    Smith     (74    X.    Y.    S. 

849,  36  Misc.  815),  454. 
Simonds  v.   Hoover    (35   Ind.  412), 

314. 


TABLE  OF  CASES. 


Ixxix 


[References  are   to   sections.] 


Simmons   v.    Kramer    (88   Va.  411, 

13  S.  E.  902),  129. 
iSimmons  v.  Oneth    (  [Mo.  App.  '10] 

124  S.  W.  534),  55,  557. 
Simrall   v.    Arthur    (13    Ky.   L.    R. 

682),   537. 
Kims   V.   Rockwell    (156   Mass.   372, 

31  N.  E.  484),  24,  39,  1057. 
Singer,  etc..  Stone   Co.  v.   Hutchin- 
son   (61   111.   App.  308),  292. 
Singleton     v.     O'Blevis     (125     Ind. 

151),    641. 
ISkinner     v.    Douville     ([Fla.    Sup. 

'09]  49  S.  125),  290. 
Slater  v.  Holt   (10  X.  Y.  St.  257), 

15,  22. 
Slayback  v.  Wetzel   ( [Mo.  App.  '09] 

123  S.  W.  982),  47,  422a,  456, 

557,    1041a, 
Sleeper  v.  Murphy    ( 120  Iowa,  132, 

94    X.    W.    275),    24. 
Sloman   v.    Bodwell    (24   Xeb.    790, 

40    X.    W.    321),    23,    41,    435, 

451. 
Small   V.   Collins    (6   Houst.    [Del.] 

273),   41. 
Smeltzer    v.     Lombard     (57     Iowa, 

294),  57,  290. 
fcsmiley   v.   Bradley    (18   Colo.    App. 

191,   70   P.   696),   743,   819. 
Smith  V.  Anderson   (2  Ida.  [Harb.] 

537,  21   P.  412),   896. 
Smith   V.   Aultz    (78   Xeb.  453,    110 

X.  W.  1015),  647,  664. 
Smith  V.  Cutter    (66  X.  Y.  S.  332, 

54   A.   D.   618),    1054. 
Smith  V.  Fairchild   (7  Colo.  510,  4 

P.  757),  531. 
Smith   V.   Fears    ([Tex.   C.   A.   '09] 

122    S.    W.    433),    752a,    925a, 

1123. 
Smith   V.    Fowler    ([Mo.   App.    '09] 

122  S.  W.  598),  446. 
Smith   V.   Keller    (151    HI.    518,   38 

X,   E,   250),   304,   568. 
Smith  V.  Lawrence    (98   Me.  92,  50 

A.  455),  91,  557,  582,  810. 
Smith    V.    Mayfield     (dO    111.    App. 

266),  18,  526. 
Smith    V.    Mayfield     (103    IlL    447, 

45   X.   E.    157),    1066. 


Smith    V.    Mayfield     (163    111.    447, 

43   X.   E.    157),    1066. 
Smith  V.  McCann   (205  Pa.   St.  67, 

54  A.   498),  53,  61. 
Smith  V.  McGovern  (65  X.  Y.  574), 

896. 
Smith    V.    Merrill     (134    Wis.    227, 

114  X.  W.  508),  95. 
Smith   V.   Morse    (9   Wall.    [U.   S.] 

76),   75. 
Smith  V.   Xicoll    (36  X.  Y.  S.   347, 

91  Hun,   173),  298. 
Smith  V.  Seattle,  etc.,  Co.   ( 25  X.  Y. 

S.  368,  72  Hun,  202),  446. 
Smith   V.    Schiele    (93    Cal.    144,   28 

P.   857),  24,   87,   454,   533. 
Smith    V.    Sharp    ([Ala.    Sup.    '09] 

50  S.  381),  449,  450,  465,  604, 

729a,  879,   1024. 
Smith    V.    Smith     (1    Sweeney    [X. 

Y.]   552),  454,  557,  S96. 
Smith  V.   Soosen    (53  X.  Y.  S.  806, 

24  Misc.  706),  679. 
Smith    V.    Tate    (82    Va.    057),    26, 

577. 
Smith  V.  Townsend  (109  Mass.  500), 

2'jO,  559, 
Smith   V,  Truitt    (107   Mo,   App.    1, 

80  S,  W.  686),  445,  446. 
Smith   V.   Va.    &,   Car.   Lumber    Co. 

163  Fed.  249,  89  C.  C.  A.  632), 

511,  587. 
Smont  V.  lllory  ( 10  M.  &  W.  [Eng.] 

1),    18. 
Smye    v.    Groesbeck     ( [Tex.    C.    A. 

'02]    73   S.   W.   972),   340,  557, 

890. 
Smythe  v.  Mack    (19  X.  Y.  S.  347, 

64  Hun,  639),  19,  r03. 
Snow   V.    McFarlane    (51    111,    App. 

448),   456,  481. 
Snydam    v.    Healey     (87    X.    Y.    S. 

669,  93   A.   D.   390).   454. 
Snydam  v.  Vogel   (84  X,  Y.  S.  915), 

24. 
Snyder  v.  Fearer  (87  111.  App.  275), 

449,    450,    532. 
Snyder   v.    Fidler    (125    Tnwa,   378, 

101   X.   W.   130),   732,   985. 
Snyder   v.    Fidler    (135    Iowa,    304, 

112   X.  W.  546),   181,  467. 


Ixxz 


TABLE   OF    CASES. 


[References  are   to   sections.] 


Solomon  v.  Creas    (22  Oregon,   177, 

29  P.  439),  1015a. 
Somers   v.    Westcott    (66    N.    J.   L. 

551,  49  A.  462),  362,  454. 
Sotsky   V.   Ginsberg    (114   N.   Y.   S. 

114,    120   App.   Div.   441),    454, 

465. 
Soudieu    v.    Faures     ( 12    La.    Ann. 

746),  350. 
Soule  V.  Bearing  (87  Me.  365,  32  A. 

998),  291. 
South  Dakota,  State  of,  590. 
South    V.   Seattle,    etc.,    R.    R.    Co. 

(25  N.  Y.  S.  368,  72  Hun,  202), 

17. 
Southack  v.  Lane   (65  N.  Y.  S.  629, 

32  Misc.  141),  36,  88,  314,  578, 

875. 
Southback  v.  Ireland    (95  N.  Y,  S. 

621,   100  A.   D.  45),   723. 
Southwick  V.  Swavienski   (99  N,  Y. 

S.   1079,    114   A.  D.  681),   175, 

446. 
Spalding   v.   Saltiel    (18  Colo.    863, 

31   P.  486),  454. 
Speer   v.    Craig    (16    Colo.   478,   27 

P.  891),  18,  409. 
Spengeman  v.  Palestine  Bldg.  Ass'n 

(60  >N.  J.  L.  357,  37  A.  723), 

10,  39,   590. 
Spofford    V.    Hobbs    (29    Me.    148), 

24,  26,  57,  336,  592. 
Spota  V.  Hayes    (73   N.   Y.  S.  959, 

36   Misc.   532),  213. 
Spottswood    V.    Morris     ( 12    Idaho, 

360,  85  P.  1094),  38. 
Sprague   v.    Reilly    (34    Pa.    Super. 

Ct.  332).  576,  1037. 
Springer  v.  Orr   (82  111.  App.  558), 

628. 
Squires  v.  King  (15  Colo.  416,  417), 

242. 
Stadleman   v.    Fitzgerald    ( 14   Neb. 

290),  18. 
Staehlin  v.  Kramer    (118  Mo.  App. 

329,   94   S.   W.   785),   292,  612, 

717. 
Staley   v.    Huffard     (73    Kan.    686, 

85  P.   763),  39. 
Stamet   v.    Dennison    (193    Pa.    St. 

548,   44   A.  525),    15,   22,   454. 


Stanford    v.    Bell     (99    Iowa,    545, 

6«   N.   W.   817),   446. 
Stanton   v.    Barnes    (72   Kan.    641, 

84    P.    116),    538. 
Staten  v.  Hammer   (121  Iowa,  499, 

96  N.  W.  964),  18,  53,  307. 
Stauff   V.    Bingenheimer    (94    Minn. 

309,    102    N.    W,    694),    913. 
Stearns    v.    Hockbrunn     (24    Wash. 

206,   64   P.   165),  414.   ' 
Stearns  v.  Jennings   ( 128  Wis.  379, 

107   N.   W.    327),   307c,   840. 
Stedman    v.    Richardson     ( 100    Ky. 

79,  37  S.  W.  259),  553. 
Stedman    v.    Richardson    ( 100    Ky. 

79,    18    Ky.    L.    R.    567,    37    S. 

W.   259),   558. 
Steidl    V.    McClymonds     (90    Minn. 

205,  95  N.  W.  906),  17,  454. 
Steele    v.    Lawyer    (47    Wash.    266, 

91  P.  958),  12,  38. 
Steele   v.    Lippman    (115    N.   Y.   S. 

1099),  430. 
Steele    v.    Rumore    (117    N.    Y.    S. 

189),  430. 
Steere  v.  Gingery  ( [S.  D.  Sup.  '07] 

110  N.  W.  774),   194. 
Stein    V.    Whitney    (23    Ky.    L.    R. 

2179,  66  S.  W.  820),  321. 
Steinfeld    v.    Strom    (63    N.   Y.    S. 

966,    31    Misc.    167),    61,    502, 

632a. 
Steinmetz    v.    Pancoast    (17    Phila. 

[Pa.]   185),  234. 
Stein  V.   Kendall    (1   Broadw.   [111.] 

103),   24. 
Stelting    V.    Bank   of    Sparta    ( 136 

Wis.  369,  117  N.  W.  798),  313, 

629. 
Stemler  v.  Bass    (153   Cal.   791,  96 

P.  809),  18,  24. 
Stengel    v.    Sergeant     ( [N.    J.    Eq. 

'08]    68   A.   1106),   18,  85,  418, 

422,  831,  832. 
Stephens  v.   Bailey    (149   Ala.   256, 

42   S.   740),    17,    36,    590,   651, 

697,  893. 
Stephens  v.  Scott   (43  Kan.  285,  23 

P.    555),    17,    113,    136,   564. 
Stephens  v.  Tomlinson  ( [Tex.  C.  A. 

'05]  88  S.  W.  304),  41,  615. 


TABLE    OF    CASES. 


Ixxxi 


[References  are   to   secticns.] 


Stemberger   v.   Young    ( [N.   J.   Eq. 

'10]  75  A.  807),  475. 
Sterling  v.  De.  Laune   ([Tex.  C.  A. 

'07]    105   S.   W.    1169),  24,  25, 

109,  393,  823,  1030. 
Stevenson  v.   Ewing    (87   Tenn.   4lj, 

9   S.  W.  230),  558,  576. 
Stewart    v.    Fowler    (37    Kan.    677, 

15   P.   918),   54,   571,    1087. 
Stewart   v.    Fowler    (53    Kan.    537, 

36  P.   1002),  462,  557. 
Stewart  v.   Mather    (32   Wis.  344), 

423,  451. 
ytewart   v.   Murray    (92   Ind.   543), 

558. 
Stewart    v.    Muse     (62    Ind.    385), 

260,   349. 
Stewart    v.    Smith     (50    Neb.    631, 

70  N.  W.  235),  557. 
Stewart  v.  Van  Home  (91  Mo.  App. 

647),  669. 
Stewart  v.  Woodward  ( 7  Kan.  App. 

633,  53  P.  148),  445. 
Stievel  v.  Lally    (89  Ark.   195,   115 

S.  W.  1134),  446,  502,  557,  560, 

676,   737,   1028a. 
Stillman    v.    Fitzgerald     (37    Minn. 

186,  33  N.  W.  564),  18. 
Stinde  v.  Bleach  (42  Mo.  App.  578), 

61,  446,  502. 
Stinde  v.  Scharff  (36  Mo.  App.  15), 

711. 
Stockbridge     v.     West     Stockbridge 

(14  Mass.  257,  261),  24.  366. 
Stone   V.  Ferry    ([111.   App.  '09]    88 

N.  E,  186),  446. 
Stone    V.    Goldstein    (97    N.    Y.    S. 

1035,  49  Misc.  482),  223. 
Stone  V.  Plant   (96  N.  Y.  S.   1030), 

247. 
Storer    v.    Markley    ( 164    Ind.    535, 

73   N.   E.    1081),   465. 
Story  on  Ag.,  2,  3,  4,  5,  6,  22,  58, 

385. 
Stotts  V.  Miller   (128  Iowa,  633,  105 

N.  W.  127),  719a. 
Stout   V.    Humphrey    (09    N.    J.    L. 

436,  55  A.  281^),  21,  587. 
Stoutenburg  v.  Evans    ([Iowa  Sup. 

'09]   120  N.  W.  59),  392a,  464. 


Stover   V.    Flower    (120   Iowa,   514, 

94  N.  W.   1100),  326. 
Stratton  v.  Sam  W.  Jones  Co.    (20 

Ky.  L.  R.  1787,  50  S.  W.  33), 

449. 
Strauss  v.  Eastern  Brewing  Co.  ( 118 

N.  Y.  S.  806),  725a. 
Strickland    v.    Fairfax    ( [Va.    Sup. 

'09]   65  S.  E.  477),  560. 
Stringfellow   v.  Powers    (4    Tex.   C. 

A.    199,    23    S.    W.    313),    13, 

42. 
Strong  V.  High  (2  Rob.  [La.]   103), 

325. 
Strong  v.   Ross    (33   Ind.   App.  586, 

71    N.    E.    918),    18,    307,   458, 

564. 
Stronghill  v.  Anstey   ( 1  De  Gex,  M. 

&  G.  [Eng.]  63*5),  26,  263. 
Strout  V.  Gay    ([Me.  Sup.  '0£]    72 

A.   881),   1117. 
Strout  V.  Hubbard   ( [Me.  Sup.  '08] 

71  A.  1020),  15,  446,  560. 
Strout    V.    Kenney    (107    N.    Y.    S. 

92),   533. 
Strowbridge  v.  Swan    (43  Neb.  281, 

62    N.    W.    199),    314. 
Strunski    v.   Gciger    (101    N.   Y.    S. 

786,    52    Misc.    134),    658,    699. 
Stuart  v.   Mattern    (141   Mich.   686, 

105  N.  W.  35 ) ,  622. 
Stuart   V.    Stumph    (126    Ind.    580, 

26    N,    E.    553),    340. 
Studer  v.  Byson   (92  Minn.  388,  100 

N.  W.  90),  17. 
Sturdevant    v.    Pike    (1    Ind.   277), 

389b. 
Sullivan    v.    Davis     (4    Cal.    291), 

26,  332. 
Sullivan  v.  Hampton    ( [Tex.  C.   A. 

'95]    32   S.   W.  235),  454. 
Sullivant  v.  Jahren    (71   Kan.    127, 

79  P.  1071),  18,  42. 
Sullivan  v.  Leer   (2  Colo.  App.  141, 

29    P.    817).    127. 
Sullivan  v.  Milliken    (113   Fed.  93, 

51  C.  C.  A.  79),  632a. 
Sullivan  v.  Tufts  ([.Mass.  Sup.  '09] 

89  N.  E.  239),  314,  446,  1001a. 


Ixxxii 


TABLE   OF    OASES. 


[References  are  to  sections.] 


Sununa    v.    Dereskiawicz     ( [  Conn. 

Sup,  '09]  74  A.  906),  559,  712, 

712a,  912a. 
Summers    v.    Carey    (74    N.    Y.    S. 

980,  69  N.  Y.  A.  D.  428),  301, 

446. 
Summers   v.   Summers    (26    Ky.   L. 

R..179,  80  S.  W.   1154),   1055. 
Susdorf  V.  Schmidt   (55  N.  Y.  319), 

446,  587,  639. 
Swartsww)d  v.  Naslin  ( [Wash.  Sup. 

'10]   106  P.  770),  590. 
Sweeney  v.  Ten-Mile  Oil  &  Gas  Co. 

(130  Pa.   St.   193,   18  A.   612), 

533. 
Sweet  V.  Jacocks   (6  Paige   [N.  Y.] 

355),  35. 
Swigart    v.   Hawley    (140    111.    186, 

29    N.    E.    883),    930. 
Swigart    v.    Hawley     (40    111.    App. 

610),    449. 
Switzer    v.    Skiles     (3   Gilm.    [111.] 

529),  35. 
Syllison  v.  Hanson   (48  Wash.  608, 

94  P.  187),   lo. 
Sylvester    v.    Johnson     (110    Tenn. 

392,  75  S.  W.  923),  13,  15,  454. 


Tagg  V.  Bowman  (108  Pa.  St.  273), 

386. 
Taggart    v.    Stanberry    (2    McLean 

[U.   S.]    543),   26,   43,   417. 
Talbott  V.  Bowen    ( 1  A.  K.  Marsh. 

[Ky.]   436),  590. 
Talbott  V.  Luckett    (Md.  Sup.  '94] 

30  A.  565),  316. 
Talcott   V.   Mastin    (20    Colo.    App. 

488,  79  P.  973),  56. 
Timberman    v.    Craddock     ( 70    Mo. 

638),   449,  450. 
Tanenbaum  v.  Boehm   (111  N.  Y.  S. 

185,    126   App.    Div.    731),    33. 
Tanner    v.    Clapp     (139    111.    App. 

353),   631. 
Tappin   v.    Henley    ( 1 1    Wkly    Rep. 

[Eng.]  466),"l5,  299. 
Tasse  v.  Kindt    (125  Wis.  631,   104 

N.   W.   703),   314. 


Tate   V.   Aitken    (5   Oal.   App,   506. 

90  P.   836),  82,  314,  1083. 
Taubenblatt  v.  Galewski  ( 108  N.  Y. 

S.  588),  398. 
Taylor   v.    Barbour    (90   Miss.   888, 

44  S.  988),  20,  523. 
Taylor    v.    Cox     ([Tex.    Sup.    '91] 

16  S.  W.  1063),  932. 
Taylor    v.    Cox     ([Tex.    Sup.    '87] 

7  S.  W.  69),   17,   18,  304,  328. 
Taylor  v.  Guest  (45  How.  Pr.  276), 

689a. 
Taylor  v.  Galloway    (1   Ohio,  232), 

26,  263. 
Taylor    v.    Knox     ( 1    Dana    [Ky.] 

391),  338. 
Taylor    v.    Martin     (109    La.     137, 

33   S.    112),    15,    17,   446. 
Taylor  v.   Parr    (52  Mo.  249),  557. 
Taylor   v.   Read    ([Tex.   C.  A.   '08] 

113  S.  W.  191),  18,  410a,  986a. 
Taylor  v.  Satterthwaite  ( 22  N.  Y.  S. 

187,  2  Misc.  441),  658. 
Tebo  V.  Mitchell  ( 5  Pennewill  [Del.] 

356,  63  A.  327),  39,  730. 
Telford  v.  Brinkerhofl"   (45  111.  App. 

586),  236. 
Templeton   v.   Riegart    (  [Kan.   Sup. 

'09]    100  P.  654),  587. 
Terry   v.   Reynolds    (111   Wis.    122, 

86  N.  W.  557),  557. 
Terry  v.  Wilson   (50  Minn.  570,  52 

N.  W.  973),  116. 
Texas  Brokerage  Co.  v.  Jno.  Bakly 

&   Co.    ([Tex.    C.   A.    '08]    109 

S.   W.   1001),   290. 
Thain    v.    Philbrick     (74    N.    Y.    S, 

856,   36   Misc.   829),  460. 
Thill  V.  Schonzeit  ( 93  N.  Y.  S.  383, 

104  A.  D.  151),  906. 
Thomas  v.   Brandt    (Md.   Sup.  '93] 

26  A.  524),  616. 
Thomas  v.  Merrifield   (7  Kan.  App. 

669,   53   P.   891),    12,    17. 
Thompson  v.   City  of   Sea   Isle    (58 

N.  Y.  S.  203,' 27  Misc.  834,  Rev. 

59  N.  Y.  S.  596,  28  Misc.  494), 

277,  278. 
Thompson   v.   Davenport    (2   Smith 

Lead.  Cas.  366),  18. 


TABLE   OP   CASES. 


Ixxxiii 


IReferences  are  to  sections.] 


Thornal  v.  Pitts    (36  N.  Y.  Super. 

Ct.   379),  889. 
Thornton    v.    Moody    ( [Tex.    C.    A. 

'93]    2*   S.    W.    331),   40,    121, 

164,  369. 
Thornton  v.  Stevenson   ( [Tex.  C.  A. 

'95]   21   S.  W.  232),  587. 
Thuner  v.  Kanter  ( 102  Mich.  59,  60 

N.  W.  299),  439,  558,  587. 
Thwing  V.  Clifford  ( 136  Mass.  482 ) , 

25,  42,  314,  318,  454. 
Tibbs  V.  Zirkle    (55  W.  Va.  49,  46 

S.  E.  701),  24,  35,  98,  337b. 
Tieck   V.    McKenna    (101    N.   Y.    S. 

317,   115  A.  D.  701),  192,  290, 

893. 
Tigarder  v.  Big  Star  Zinc  Co.    (71 

Ark.  277,  72  S.  W.  989),  311, 

314. 
Tilden  v.   Smith    ( [S.  D.  Sup.  '10] 

124  N.  W.  841),  22,59. 
Tilton  V.  James   S.  Gate  Land  Co. 

([Wis.    Sup.    '09]     121    N.    W. 

351),  663,  1116. 
Tinge  v.  Moale   (25  Md.  480),  291. 
Tinkham    v.    Knox    (18    N.    Y.    S. 

433),  17,  443. 
Tinkham    v.    Knox     (21    N.    Y.    S. 

954,    2    Misc.    579),    201,    951. 
Tinkleton  v.  Spurck   (115  111.  App. 

521),    502. 
Tinsley    v.    Durfey     (99    III.    App. 

239),  610. 
Tinsley  v.  Scott   ( 69  111.  App.  352 ) , 

444. 
Title   Ins.  Co.   v.   Grider    (152   Cal. 

746,  94  P.  601),   1103,   1104. 
Todd  V.  Bourke   (27  La,  Ann.  385), 

315. 
Tooker  v.  Duckworth  ( 107  Mo.  App. 

231,  80   S.  W.   963),  292,   447, 

576. 
Tombs    V.    Alexander     (101     Mass. 

•  265),  633. 
Toole  V.  Baer  (91  Ga.  113,  16  S.  E. 

378).   632a. 
Topliff   V.  iShadwell    (64   Kan.   884, 

67    P.    546),   24,    381. 
Tousey  v.  Etzel   ^^9  Utah,  329,  34  P. 

291),  85, 


Tower  v.  O'Neil    (66  Pa.  St.  332), 

36,  51. 
Townsend  v.  Corning  (23  Wend.  [N, 

Y.]  435),  58,  76. 
Townsend  v.   Hubbard    (4  Hill    [N. 

Y.]  361),  58,  76. 
Tracey   v.    Abney    (122    Iowa,    306, 

98  N.  W.  121),  558,  585. 
Tracey   v.    Dean    ( [Neb.   Sup.    '06] 

109  N.  W.  506),  557. 
Tracey  v. -Forbes   (132  Iowa,  250), 

109  N.  W.  772),  657. 
Tracey  v.  Radeke   ( [Iowa  Sup.  '09] 

119   N.   W.   626),   42. 
Tracey    Land    Co.    v.    Polk    C.    Ld. 

&  Loan  Co.   (131  Iowa,  40,  107 

N.    W.    1029),    696,    866,    889, 

740b. 
Travis  v.  Graham  (48  N.  Y.  S.  736, 

23  A.  D.  214),  454,  842. 
Trees  v.  Milliken    ([Ind.  App.  '08] 

86  N.  E.  123),  441,  1006. 
Tricky   v.  Crowe    (8   Ariz.   176,   71 

P.  966),  34. 
Trudo  V.  Anderson    (10  Mich.  367), 

26,    167,   202,   337. 
Tubbs  V.  Mcintosh   (31  Neb.  238,  47 

N.  W.  854),  454. 
Tuck  V.  Downing  (76  111.  71),  686. 
Tudro   V.    Cushman    (5    Wis.    279), 

418. 
Tuffree  v.  Bickford   ( 130  Iowa,  632, 

107  N.  W.  425),  300,  580,  756, 

1047b. 
Turnbull  v.  Gadsden  (2  Strob.  [Eq.] 

6.  C.  14),  229. 
Turner  v.  Baker    (225   Pa.   369,  74 

A.    172),    13,   307. 
Turner  v.  Lane    (93  N.  Y.  S.   1083, 

47    Misc.    387),    64,    670,    722, 

780. 
Turner    v.    Putnam     (13    N.    Y.    S. 

567).  446,  449,  450. 
Turner    v.    Snyder    ( 132    Mo.    App. 

320,    111    S.   W.    858).   22,   612. 
Turnley  v.  Michael  ( [Tex.  C.  A.  '91] 

15  S.  W.  912).  456,  481. 
Twelfth  St.  Market  Co.  v.  Jackson 

(102    Pa.    269),    24,    38,    216a, 

657. 


Ixxxiv 


TABLE   OF    CASESk 


[References  are   to   sections.] 


Tyler  v.  Justice    ( 120  Ga.  879,  48 

S.  E.  328),  428*. 
Tyler  v.   Parr    (52   Mo.   249),   557, 

561. 
Tyng    V.    Constable     (71    N.    Y.    S. 

820,35  Misc.  283),  447. 


Ullman  v.  Land  ( 37  Tex.  C.  A.  422, 
84  S.  W.  294),  40,  121,  164. 

United  States  v.  Fisk  (25  Fed.  Cas. 
No.  15104),  8a. 

Uphof  V.  Ulrich  (2  111.  App.  399), 
22,  290,  558. 


Vandercook  v.  Williams  (  [Cal.  App. 

'06]   87  P.  1116),  557. 
Vanderpool    v.    Kearns     (2    E.    D. 

Smith,  170),  232,  241. 
Vanderveer  v.  Suydam   (31  N.  Y.  S. 

392,   83   Hun,    166),   557. 
Vandevort   v.   Wheeling   Steel,   etc., 

Co.    (194    Pa.    St.    118,    45    A. 

86),  890. 
Vandoren   v.   Jelliffe    (20  N.   Y.   S. 

626,     1     Misc.    354).  446,    449, 

450. 
Vandyke   v.   Walker    (49   Mo.   App. 

381),  448. 
Van  Crorder  v.  Sherman   (81   Iowa, 

403,  46  N.  W.    1087),  53,  483. 
Van  Hermanni  v.  Wagner  ( 30  N.  Y. 

S.  991),  81  Hun,  431),  12,  17, 

594. 
Van  Lieu  v.  Byrnes   ( 1   Hilton   [N. 

Y.]    133),  233,  429. 
Van     Norman     v.     Fitchette      (100 

Minn.    145,    110    N.    W.    851), 

274,  556. 
Van  Orden  v.  Morris   (42  N.  Y.  S. 

473,  18  Misc.  579),  234,  557. 
Van    Paulte   v.    Epstein    (202    Mo. 

173,  99  S.  W.  1077),  309^  32.1. 


Van  Siclar  v.  Herbst   (51  N.  Y.  S. 

968,  33  A.  D.  255),  1054. 
Van  Tobel  v.  Stetson,  etc.,  Mill  Co. 
(32    Wash.    683,    73    P.    788), 

454,  896,  981. 
Van    Vlissingen    v.    Blum    (92    111. 

App.    145),   314. 
Varn    v.    Pelott    (55    Fla.    357,    45 

S.    1015),   408. 
Vaughn  v.  Sheridan  (50  Mich,  155), 

24,  26. 
Veale    v,    Greene     ( 105    Mo.    App* 

182,  79  S.  W.  731),  738,  1056. 
Veasey  v.  Carson    (177   Mass.    117, 

58  N.  E.  177),  487. 
Veatch    v.    Norman    (95    Mo.    App. 

500,  69  S.  W.  472),  557. 
Veatch   v.   Norman    ( 109  Mo.   App. 

387,  84  S.  W.   350),  509,  587, 

991. 
Veazie    v.    Parker     (72    Me.    443), 

736. 
Veeder  v.  Seaton   (83  N.  Y.  S.  159, 

85  A.  D.  196),  557. 
Venada  v.  Hopkins  ( 1  J.  J.  Marsh. 

[Ky.]    285,    293),    26,    43,    417. 
Vercruyse    v.    Williams    (112    Fed. 

206,  50  C.  C.  A.  486),  258,  268. 
Viaux  V.  Old  South  Soc.  ( 133  Mass. 

1,  10),  116,  630. 
Viley  V.  Pettit  (96  Ky.  576,  16  Ky. 

L.  R.  650,  29  S.  W.  438),  17, 

51,  443.  646. 
Vincent  v.  Woodland   Oil   Co.    (165 

Pa.    St.    402,    30    A.    991),    15, 

558. 
Vinton   v.   Baldwin    (95   Ind.  433), 

284,  285. 
Vinton  v.   Baldwin    (88   Ind.    104), 

242. 
Volker    v.    Fisk     ( [N.    J.    Eq.    '09] 

72    A.     1011),     163,    382,    433, 

572,  629. 
Vorhis  V.  Elias    (56  N.  Y.  S.  134), 

562. 
Votaw  V.  McKeever    (76  Kan.  870, 

92  P.  1120),  446. 
Vreeland  v.  Vetterlein   (33  N.  J.  L. 

247),  446,  449,  450,  581. 


i 


TABLE   OP    CASES. 


.    Ixxxv 


[References  are   to   sections.] 


W 

Wade  r.  Bishop  (5  Ohio  S.  &  C.  P. 

Dec.  625),  461. 
Wagner   v.    Morris    (39    Colo.    106, 

88  P.  973),  557. 
Walker   v.   Baldwin    (103  Md.   352, 

63  A.  362),  576. 
Walker   v.   Baldwin    (106  Md.  619, 

68  A.  25),  446,  513,  923,  1032. 
Walker   v.   Bk.  of  St.  of  N.  Y.    (9 

N.    Y.     [5    Selden]    582),     18, 

567. 
Walker  v.  Carrington  (74  111.  446), 

708. 
Walber  v.  Chambers  (128  111.  App. 

624),  557. 
Walker  v.   Dennison    (86  111.   162), 

18,  19. 
Walker  v.   Derby    (5   Bias.   [U,  S.] 

134),  14. 
Walker   v.    Johnson    (46   N.   Y,    S. 

864,  21   Misc.   16),    1076. 
Walker  v.  Mobile,  etc.,  R.  Co.    (34 

Miss.  245),  24. 
Walker  Mfg.  Co.  v.  Knox  ( 136  Fed. 

334,  69  C.  C.  A.  160),  19. 
Walker  v.  Osgood    (98  Mass.  348), 

314,  578,  875. 
Walker    v.    Rogers    (24    Md.    237), 

937. 
Walker  v.  Tirrell    (101  Mass.  257), 

637a,  874. 
Wallace   v.    Figone    ( 107   Mo.   App. 

362,  81  S.  W.  492),  15,  90. 
Wallace  v.  Shepard   (42  Tex.  C.  A. 

594,  94  S.  W.   151),  498. 
Wallick  V.  Lynch   ( [Iowa  Sup.  '06] 

106  N.  W.  617),  738,  1014. 
Walling    V.    Poulsen    ( [Mich.    Sup. 

'10]  125  N.  W.  373),  389a. 
Walsh  V.    Hastings    (20   Colo.    243, 

38  P.   324),   113,   136. 
Walton  V.  Cheesebrough   ( 167  N.  Y. 

606,  60  N.  E.  1121),  940. 
Walton    V.    McMorrow    (39    A.    D. 

667,  57  N.  Y.  S.  691),  19,  169. 
Walton   V.    McMorrow    (175    N.   Y. 

495,  67  N.  E.  1090),  446. 
Walton   V.   N.   O.,  etc.,  R.  Co.    (23 

La.  Ann.  ^98),  439,  558. 


Walsh   V.   Gay    (63   N.    Y.   S.   543, 

49  A.  D.  50),  108,  744. 
Wandless  v.  McCandless    (38   Iowa, 

20),  53,  626. 
Ward  V.   Cobb    (148   Mass.   518,  20 

N.  E.  174),  15,  380. 
Ward  V.  Fletcher    (124  Mass.  224), 

439,  658. 
Ward   V.    Kennedy    (101    N.   Y.    S. 

524,   51    Misc.  422),   216. 
Ward    V.    Lawrence    (79    111.    295), 

59,  123,  557,  590. 
Ward  V.   McQueen    (13  N.  D.   153, 

100  N.  W.  253),  557. 
Ward  V.  Trustees  N.  E,  S.  Conf.  of 

M.  E.  C.    (27  R.  I.  262,  61  A. 

651),  243,  269. 
Ward   V.    Zborroski     (63    N.    Y.    S. 

219,  31  Misc.  66),  85,  427. 
Ware  v.  Dos   Passes    (38  N.  Y.   S. 

673,  4  A.  D.  32),  17,  446. 
Ware  v.  Kirwin   (48  N.  Y.  S.  884, 

24  A.  D.   198),  21. 
Warr    v.    Jones    (24    Weekly    Rep. 

[Eng.]    695),   589. 
Warren  v.  Bart  (58  Fed.  101,  7  C. 

C.  A.  105),  314. 
Warren  v.  Cram  (71  Mo.  App.  638), 

557. 
Warren   v.   Dickson    (37   111.    115), 

291. 
Warren  Com.,  etc.,  Co.  v.  R.  E.  Co. 

(120   Mo.   App.  432,  96   S.   W. 

1038),   393. 
Warren   Com.    &   Inv.   Co.    v.   Hull 

(120  Mo.   App.  432,   96  S.  W. 

1038),  24,  55,  519,  523. 
Warrick  v.  Smith   (137  111.  504,  27 

N.  E.  709),  844. 
Washington,  State  of,  590. 
Wasner   v.  Leon    (32   Neb.   519,   49 

N.  W.  463),  446. 
Wasweyler    v.    Martin    (46    N.    W. 

890,  78  Wis.  59),  17.      . 
Waterman  v.  Boltinghouse  (82  Cal. 

659,  23  P.  195),  13,  558. 
Waterman    v.    Stephens    (71    Mich. 

104,  38  N.  W.  685),  590. 
Waters  v.  Phelps  (81  Neb.  674,  116 

N.  W.  783),  1109. 


Ixxxvi- 


TABLE   OF   CASES. 


[References  are   to   sections.] 


Waters  v.  Rafalsky    (119  N.  Y.  S. 

271),  658,   743. 
Watkins  v.  Consell   { 1  E.  D.  Smith 

[N.   Y.]   65),  51,  290. 
Watkin's   Land   Mtge.   Co.  v.   Thet- 

ford   ( [Tex.  C.  A.  '06]  96  S.  W. 

72),  25,  393,  519,  576,  694,  854, 

907,  1008. 
Wntkins  v.  Thomas  ( [Mo.  App.  '10] 

124  S.  W.  1063),  515a,  567. 
Watson    V.    Brooks     (11    Ore.    271, 

3  P.  679),  15. 
Watson  V.  Brooks    (13   Fed.  540,  8 

Sawyer,   316),    14. 
Watson  V.  Paschall    (83   S.  C.  366, 

65  S.  E.  337  ) ,  929b. 
Watson    V.    Sherman    (84    111.    263, 

267),  17,  18,  26,  590,  592. 
Watters  v.  Dancy   ( [S.  D.  Sup.  '09] 

122  N.  W.  430),  590,  719,  725-. 
Watterson  v.  Rogers  (21  Kan.  529), 

24. 
Watts  V.  Howard  (51  III.  App.  243), 

17,  292,  446,  447. 
Weatherhead  v.  Ettinger    (78  O.  S. 

104,  84  N.  E.  598),  18,  328. 
Weaver    v.    Richards      ( 156     Mich. 

320),  696,  906. 
Weaver  v.  Richards   (150  Mich.  20, 

113  N.  W.  867),   1025,   1033. 
Weaver  v.  Richards   ( 144  Mich.  395, 

108  N.  W.  382),   555. 
Weaver  v.  Snively  (73  Neb.  35,  102 

N.  W.  77),   18. 
Weaver  v.  Snow   (60  111.  App.  624), 

42,  59. 
Webber  v.  Holmes   (174  Mass.  410, 

64  N.  W.  872),  461. 
Wedner    v.    Lane    (14    Mich.    124), 

24. 
Weeks  v.  Smith   (N.  J.  Sup.  '10]  75 

A.  773),  24,  486,  502. 
Wefel    V.    Stillman    (151    Ala.   249, 

44   S.  203),  20,   397,   564,   650, 

738,   808,   1020. 
Weil  V.  Schwartz   ([Tex.  C.  A.  '09] 

120  S.  W.   1039),  745,  946. 
Wein   V.   Gilmer    (81    Tex.    345,    16 

S.   W.   1058),   684. 
Weinhuser  v.  Cronin  (68  Conn.  250, 

36  A.   45),  51. 


Weinman  v.   Spencer    ( [Tex.   C.   A. 

'09]    124   S.   W.   209),   989. 
Weinstein  v.  Golding    (40  N.  Y.  S. 

680,    17   Misc.    6.13),    446,   519. 
Weisels-Gerhart  R.  E.  Co.  v.  Wain- 

wright   (127  Mo.  App.  514,  105 

S.  W.  1096),  22,  81, 
Weisinger    v.    Wheeler      ( 14     Wis. 

109),  24. 
Weiss  V.  Robinson  ( 98  N.  Y.  S.  429, 

112  A.  D.  276),  41. 
Welch  V.  Goodwin    (123  Mass.  71), 

601. 
Welch  V.  Young    ( [Iowa  Sup.   '99] 

79  N.  W.  59),  532. 
Wellinger  v.  Crawford    ([Ind.  App. 

'09]  89  N.  E.  892),  590. 
Wells  V.  Hocking  V.  Coal  Co.    (137 

Iowa,    626,    114   N.   W.    1076), 

107,  86.1. 
Welsh   V.   Gay    (63    N.   Y.    S.   643, 

49  A.  D.  50),  85,  86,  108. 
Wendle  v.  Palmer   (77  Conn.  12,  58 

A.  12),  557. 
West  v.  Demme    (128  Mich.   11,  87 

N.   W.   95),   15,   290,  543,  658, 

889,  935. 
West  V.  Lynch    ( 1  City  Ct.  R.   [N. 

Y.]   225),  434,  454. 
West  V.  Mills   (82  N.  Y.  S.  473,  83 

A.  D.  629),   18. 
West   V.    Prewitt     (19    Ky.    L.    R. 

1480,  43  S.  W.  467),  889,  972. 
West    V.     Stoeckel     (6     Ohio    Dec. 

[Repr.]     1082,    10    Am.    L.    R. 

309),  449,  517,  546,  570. 
West  V.  Thompson  ( [Tex.  C.  A.  '08] 

106  S.  W.  1134),  446. 
West  End  Dry  Goods  Store  v.  Mann 

133  111.  App.  544),  446,  447. 
West  N.  J.  Soc.  V.  Morris   (Pet.  C. 

C.  [U.  S.]  59),  557. 
Wetzell    V.    Wagner    (41    Mo.    App. 

509),    61,    502,    952. 
Whalen  v.  Gore  (116  111.  App.  504), 

557. 
Whaples  v.  Fahy  (84  X.  Y.  S.  793, 

87  A.  D.  518).  314. 
Wheeler  v.  Beers   ( [Colo.  Sup.  '09] 

101  P.  768),  446,  544. 


TABLE   OP    CASES. 


Ixxxvii 


[References  are   to   sections.] 


Wheeler  v.  Buck  (23  Wash.  679,  63 

Pac.  566),  1017. 
Wheeler  v.  Knaggs    (8   Ohio,   169), 

785,  801. 
Wheeler  v   Reed  (36  111.  81),  291. 
Whervell    v.    MeLernon    Realty    & 

Con.  Co.  ( 120  N.  Y.  S.  72) ,  445. 
Whipple  V.  Lee    (46  Wash.  266,  89 

P.  712),  147. 
Whitaker  v.  Engle   (111  Mich.  205, 

69  X.  W.  493),  557,  880. 
Whitcomb  v.  Dickinson    ( 169  Mass. 

16,  47  X.  E.  426),  524. 
Whitoomb  v.  Macon   ( 170  Maas.  479, 

49  N.  E.  742),  446. 
White  V.  Benton  (121  Iowa,  354,  96 

N.  W.  876),  13,  328. 
White    V.    Collins     (90    Minn.    165, 

95   N.   W.    765),    735. 
White    V.    Hoskins   &    Benton    (121 

Iowa,  354,  96  N.  W.  876),  15. 
White  V.   Templeton    (79   Tex.  454, 

15  S.  W.  483),  17. 
White  V.  Twitehings  ( 26  Hun,  503 ) , 

17,  446. 

White  V.  Ward   (26  Ark.  445),  314. 
Whitehead  v.  Helsey    (22  N.   Y.   S. 

923,  3  Misc.  378),  446. 
Whitehouse  v.  Drisler    (56  N.  Y.  S. 

95,  37  A.  D.  525),  12,  17. 
Whiteley  v.  Terry   (82  N.  Y.  S.  89, 

83  'a.    D.    197),    12,    17,    446, 

910. 
Whitfield    V.   Huling    (50    111.   App. 

179),  558,  576, 
Whiting  V.   Saunders    (51   N.  Y.  S. 

211,  23  Misc.  332),  519. 
Whitney  v.  Lake   (91  Pa.  St.  349), 

836. 
Whitney  v.  Martine    (6  Abb.  N.  C. 

[N.   Y.]    72),   264,   349. 
Whitney  v.   Saunders    (49  N.  Y.  R. 

10i6,   22    Misc.    539),   51,    290. 
Wicks  V.  Carlisle   ( 12  Okla.  337,  72 

P.  377),  558,  576. 
Wiggen  V.  Holbrook  ( 190  Mass.  157, 

76  N.  E.  463),  272. 
Wiggins    V.    Wilson    (55    Fla.    346, 

45    S.     1011),    291,    447,    546, 

667. 


Wilkinson  v.  Churchill    (114  Mass. 

184),   314,  762. 
Wilkinson  v.  McCuUough    (196  Pa. 

St.   205,   46   A.   357),   290,  291. 
Williams  v.  Bishop    ( 1 1   Colo.  App. 

378,  53   P.    239),   61,   444,  454, 

502. 
Williams  v.  Clowes    ( 75  Conn.   155, 

52  A.  820),  446,  616,  704a. 
Williams     v.     McGraw     (52     Mich. 

480,    18   N.   W.   227),    12,   408, 

426,    482,   898. 
Williams   v.  Merritt    (23   111.  623), 

24. 
Williams  v,  Mitchell  (17  Mass.  98), 

24. 
Williams  v,  Moore    (24  Tex.  C.  A. 

402,  58  S.  W.  953),  24. 
Williams    v.    Moore-Gaunt    Co.     (3 

Ga.   App.   756,   60   S.   E.   372), 

400. 
Williams    v.    Pelley    (96    lU.    346), 

354. 
Williams   v.    Storrs    ( 6   Johns.  Ch. 

[N.  Y.]  353,  322. 
Williamson  v.  Tyson   ( 105  Ala.  644, 

17   S.   336),   315,  947. 
Willard   v.    Carrigan    (9    Ariz.    70, 

68   P.   538),    1050. 
Willard  v.  Ferguson   (110  N.  Y.  S. 

909,  125  A.  D.  858),  829. 
Willard    v.    Wright     ( [Mass.    Sup. 

'09]    89   N.   E.   559),  446,  557, 

743. 
Willner  v.  Scale   (111  N.  Y.  S.  699, 

127    A.   D.    180),    314,   557. 
Willes   V.    Smith    (77    Wis.    81,    45 

N.  W.  616),  462. 
Willey    V.    Rutherford     (108    Wis. 

35,  84  N.  W.  14),  896. 
Wilson    V.    Alexander     (  [Tex.    Sup. 

'92]    18  S.  W.   1057),  439,  558. 
Wilson  V.  Clark   (35  Tex.  C.  A.  92, 

79  S.  W.  649),  590,  632a. 
Wilson    V.    Clark     (54    Minn.    341, 

56  N.  W.  40),   17. 
Wilson  V.  Dyer    (12  Ind,  App.  320, 

39  N.  E.  163),  15,  558. 
Wilson  V.   Ellis    ([Tex.   C.   A-  '08], 

106  S.  W.  1152),  85,  701. 


Ixxxviii 


TABLE   OF    CASES. 


IRefeicrces  are  to  sections.] 


Wilson  V.   Everett    (139  U.  S.  616, 

11  Sup.  Ot.  664),  1040. 
Wilson  V.  James  ( [Wash.  Sup.  '10] 

106  P.  618),   1127. 
Wilson  V.  Klein   (90  Ala.  518,  8  S. 

130),    690. 
Wilson  V.  Mason    (158  111.   304,  42 

N.  E.  134),  5,  34,  433. 
Wilson  V.  Nuber    (  [Tex.  C.  A.  '02] 

68    S.   W.   800),   940. 
Wilson  V.  Sturgis   (71  Cal.  226,   16 

P.    772),   454. 
Wilson   V.  Webster    (88   Iowa,   514, 

55   N.   W.   571),   314. 
Winans  v.  Jacques  ( 10  Daly  [N.  Y.] 

487),  305,  370,  446. 
Winesteer   v.   Jones    (113   111.   App. 

129),  446. 
Winter  v.  Gary  ( 127  Mo.  App.  601, 

106   S.  W.   539),  208. 
Winters    v.    Portwood     ( [Tex.   Civ. 

App.  '08]    109  S.  W.   388),   56. 
Wireman's    Est.    (7    Pa.   Dist.    759, 

14   W.   N.   C.   334),   208. 
Wisconsin   Farm   Land  Co.  v.   Bal- 
lard   (119  Wis.  320,  96  N.  W. 

833),  1099. 
Wiseheart  v.  Dietz    (67   Iowa,   121, 

24  N.  W.  752),  289. 
Witherbee   v.   Walker    (42   Colo.    1, 

93  P.    1118),  443,  446,  581. 
Witherell    v.    Murphy     ( 147    Mass. 

417,    18   N.    E.    ai5),    18,    410, 

454. 
Wolff  V.  Demboskey    (74   N.   Y.   S. 

465,    66   A.    D.   428),   641,   680, 

948. 
Wolff  A-.   Rosenberg    (67    Mo.    App. 

403),    141,    444,    445. 
Wolver  V.  Shandy  (66  111.  App.  42), 

454. 
Wolverton  v.   Tuttle    (51   Ore.   501, 

94  P.  961),  19,  421,  482.  446. 
Woodall    V.   Foster    (91    Tenn.    195, 

18  S.  W.  241),  449.  490. 
Wood  V.  Burton   (47  X.  Y.  S.   184, 

21   Misc.   326),   17,   446,  507. 
Wood  V.  Broder§pn   (12  Idaho,  190, 

85  P.  490),  557. 
Wood  v.  Palmer  (151  Mich.  30,  115 

N.  W.  242),  105,  290. 


Wood  V.  Wells    (103  Mich.  320,  61 

N.  W.  503),  446. 
Woodbury  v.  Larned  (5  Minn.  339), 

24. 
Woods   V.  Stephens    (46   Mo,   555), 

532,  544. 
Woodward    v.    Davidson    ( 150    Fed. 

840,  156  Fed.  915),  291. 
Wooley   V.  Loew    (30   N.    Y.   S.   86, 

80  Hun,  294),  454. 
Woolf  v.  Sullivan   (224  111.  509,  79 

N.  E.  646),  42,  290,  514. 
Woolley   V.    Bushier    (25   N,   Y.   S. 

1045,    73    Hun,    158),    17,    446. 
Woolley  v.  Lowenstein  (31  N.  Y.  S. 

570,   83   Hun,    155),   735. 
Wooley  V.  Schwall   (5  Ohio  Cir.  Ct. 

76,  3   Ohio  Cir.  Dec.  39),  198. 
Worrell   v.   Munn    (5    N.    Y.   229), 

590. 
Worthington  v.  McGarry   (149  Ala. 

251,  42  S.  988),  100,   102,   103, 

408,  563. 
Wray  v.  Carpenter    (16  Colo.  271), 

27    P.    783),    557,    558,    1078a. 
Wren  v.  Moncure    (95  Va.   369,  28 

S.  E.  588),  291,  315. 
Wright    V.    Beach     (82    Mich.    469, 

46  N.  W.  673),  632a. 
Wright    V.    Brown     (68    Mo.    App. 

577),  445,  446,  557,  558. 
Wright  V.  Fulling  (93  N.  Y.  S.  228, 

104    A.    D.   40),    19,   42. 
Wright  V.  McClintock  ( 136  111.  App. 

438),  446,  502. 
Wright     V.     Ray      (3     Humphreys 

([Tenn.]   68),  572. 
Wright   V.   Young    (176   Mass.    100, 

57   N.    E.  212),  889,   891. 
Wulff  V.  Lindsay    (8  Ariz.   108,   71 

P.  963),  476*. 
Wulliart  V.  Weinstein   (91  N.  Y.  S. 

359),   1065. 
Wychoff  V.  Bliss    (12  Daly   [N.  Y.] 

324),  557. 
Wychoff    V.    Bissell     (48    N.    Y.    S. 

1018,  24  A.   D.   66),  446. 
Wychoff  V.  Kerr    ( [S.  D.  Sup.  '09] 

123  N.  W.  733),  446. 
Wycliff  V.  Taylor   ( 13  Daly  [N.  Y.] 

564),    713. 


TABLE   OF   CASES. 


Ixxxix 


[References  are  to  sections.] 


Wylie  V.  Marine  Nat.  Bk.    (61  N. 

Y.  415),   13,   17,   446. 
Wysong  V.  Sells    ( [Ind.  App.   '09] 

88  N.  E.  954 ) ,  590. 


Yarborough    v.    Creager    ( [Tex.    C. 

A.    '03]    77    S.   W.   646),    445, 

561,  632a,  733a,  885,  980. 
Yates  V.  Bratton   ([Tex.  C.  A.  '08] 

111  S.  W.  416),  40,  817b,  1047. 
Yazel  V.  Palmer  (88  111.  597),  418. 
Yearly  v.  Grigsby    (9   Leigh    [Va.] 

387),   18,  528,  590. 
Yedinsky  v.  Strauss   (6  Pa.  Super. 

Ct.  587,  42  W.  N.  C.  12),  124, 

576. 
Yoder  v.  Randol    (16  Okla.  308,  83 

P.  537),  557,  640. 
Yoder  v.  White  (75  Mo.  App.  155), 

557. 
York  V.  Nash    (42  Ore.  321,  71  P. 

59),  84,  454. 
Young  V.  Hubbard    (154  Mich.  218, 

117  N.  W.  632),  954a,   1078d. 


Young  V.  Metcalfe  Land  Co.    ( [N. 

D.  Sup.  '09]   122  N.  W.  1101), 

300,    1120. 
Young  V.  Ruhwedel    (119  Mo.  App. 

231,  96  S.  W.  228),  39,  41,  82, 

300,  484,  492,  602,  702,  716. 
Young  V.  Trainer    ( 158  111.  428,  42 

N,  E.  139),  15,  558,  709. 
Yount    V.    Denning    (52    Kan.   629, 

35  P.   207),  558,   576. 


Zeidler    v.    Walker     (41    Mo.    App. 

118),   85. 
Zeimer  v.  Antisell    (75  Cal,  509,  17 

P.  642),  15,  446,  557. 
Ziegler    v.    Hughes     (55    111.    288), 

630. 
Zimmerman  v.   Zahender    ( 164  Ind. 

466,  73  N.  E.  920),  18. 
Zittle  V.  Schlesinger    (46  Neb.  244, 

65   N.  W.   892),   319. 
Zunmirman    v.    Garvey     (81    Conn. 

570,  71   A.   780),  314. 


AMERICAN  LAW  REAL 
ESTATE  AGENCY 


CHAPTER   I. 


SECTION. 

SECTION. 

1. 

Who  are  capable  of  becoming 

6. 

Special  and  general  agency. 

principals  and  agents. 

7. 

Agents  who  are  termed  brokers. 

2. 

Power  of  delegating  authority. 

8. 

Who  is  not  a  broker. 

3. 

Inherent     power    of    becoming 

8a. 

Definition  of  term  "Brokerage." 

agents. 

9. 

Licenses. 

4. 

Personal  acts  that  are  undele- 

10. 

How  brokers  are  appointed. 

gatable. 

11. 

Employment  of  sub-agents. 

5. 

Acts  that  can  not  be  sub-dele- 

12. 

Employment  of  broker,  and  ita 

gated. 

limitations. 

Sec.  1.    Who  are  capable  of  becoming^  principals  and  agents. 

— In  general,  it  may  be  said  that  every  person  is  capable  of  be- 
coming a  principal  or  an  agent.    Mechem  on  Ag.,  Sec.  43. 

Sec.  2.    Power  of  delegating  authority. 

Principals  are  capable  of  delegating  authority  to  others  to  act 
in  their  behalf  and  for  their  interests.  In  general,  whenever  a 
person  has  power  to  do  a  thing  he  may  do  it  by  an  agent,  and 
every  person  of  full  age,  free  from  disabilities,  has  complete 
capacity  for  this  purpose;  but  infants,  in  some  States — to  some 
extent — married  women,  idiots,  lunatics,  and  other  persons  not 
sui  juris,  are  either  wholly  or  partially  incapable  of  appointing 
agents.  An  infant  may  authorize  another  to  do  an  act  which  is 
for  his  benefit,  but  he  can  not  authorize  him  to  do  an  act  which 
is  to  his  prejudice.  Story  on  Agency,  Sec.  6 ;  Mechem  on  Agency, 
Sees.  18,  43,  47,  54,  56. 

1 


2  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  3.    Inherent  power  of  becoming  agents. 

Almost  all  persons  are  capable  of  becoming  agents.  It  is  not 
necessary  for  a  person  to  be  sui  juris,  or  capable  of  acting  in  his 
own  right,  in  order  to  qualify  liimself  to  act  for  others.  Story  on 
Agency,  Sec.  7 ;  IMechem  on  Agency,  Sec.  57. 

Sec.  4.    Certain  acts  are  personal  in  their  nature,  and  the  au- 
thority confided  can  not  be  sub-delegated. 

In  general,  what  a  person  sui  juris  may  do  himself,  he  may 
delegate  authority  to  another  to  do  for  him ;  yet  there  are  excep- 
tions ;  thus,  although  a  person  may  do  an  unlawful  act,  it  is  clear 
that  he  can  not  delegate  authority  to  another  person  to  do  it;  for 
it  is  against  the  policy  of  the  law  to  allow  any  such  authority, 
and  therefore  the  appointment  is  utterly  void ;  it  imports  neither 
duty  nor  obligation,  nor  responsibility  on  either  side;  although 
it  may  involve  both  in  punishment.  Story  on  Ag.  Sec.  11 ;  Me- 
chem  on  Ag.  Sees.  18,  19,  20. 

Sec.  5.     Certain  acts  are  personal  in  their  nature,  and  cannot 
be  sub-delegated. 

For  it  is  a  personal  trust  or  confidence,  and  therefore  by  impli- 
cation prohibited  from  being  delegated ;  as,  if  a  man  has  a  power 
given  to  him  by  the  owner  to  sell  an  estate  or  to  make  leases  for 
him,  he  can  not  act  by  an  attorney  or  agent,  for  it  is  a  personal 
trust.  The  same  is  true  if.  by  will,  an  executor  has  power  given 
to  him  to  sell  property.  Wilson  v.  3fason,  158  111.  304.  42  N. 
E.  134.  The  same  rule  applies  to  a  broker,  for  he  can  not  delegate 
his  authority  to  another  to  sign  the  contract  on  behalf  of  his 
principal,  without  the  assent  of  the  latter,  for  a  personal  trust 
and  confidence  is  reposed  in  him.  Story  on  Ag.  Sees.  12  and  13 ; 
Foss  Inv.  Co.  V.  Ater,  49  Wash.  446,  95  P.  1017;  Mechem  on 
Ag.  Sec.  19.  It  follows,  that  where  the  broker's  power  contains 
no  power  of  substitution,  he  can  not  delegate  his  authority  to 
another.  Eilpatrick  v.  Wiley,  197  Mo.  123,  95  S.  W.  213. 
A  broker  whose  employment  involves  the  exercise  of  dis- 
cretion is  without  authority  to  sub-delegate  his  authority  to 
another;  however,  when  the  act  to  be  done  is  ministerial  or 
mechanical,  the  agent  may  employ  another  to  do  it.  Btfer  v. 
Turkel  (N.  J.  Err.  &  App.),  70  A.  68. 


THE   CONTRACT   OP   AGENCY.  3 

Sec.  C.  Agency  is  divided  into  two  classes — special  and 
general. 

Agency  is  divided  into  two  divisions ;  (1)  Special;  (2)  General 
Agency.  A  special  agency  particularly  exists  when  there  is  a 
delegation  of  authority  to  do  a  single  act.  A  general  agency 
particularly  exists  when  there  is  a  delegation  of  authority  to  do 
all  acts  connected  with  a  particular  trade,  business  or  employ- 
ment; thus,  a  person  authorized  by  his  principal  to  execute  a 
particular  deed,  or  to  sign  a  particular  contract,  or  to  procure  a 
purchaser  for  certain  real  estate,  is  a  special  agent.  Story  on 
Ag.  Sec.  17 ;  Mechem  on  Ag.  See.  6.  Several  instances  of  special 
agency  or  employments  do  not  constitute  a  general  agency.  Angle 
V.  Miss.  etc.  R.  Co.,  9  Iowa,  487,  502.  A  person  who  is  authorized 
by  his  principal  to  execute  all  deeds  and  sign  all  contracts  re- 
quired in  a  particular  trade,  business,  or  employment,  is  a  general 
agent  in  that  trade,  business  or  employment.  Story  on  Ag.  See. 
17;  Mechem  on  Ag.  Sec.  6. 

Sec.  7.  Agents  employed  to  buy  or  sell  real  estate,  to  negotiate 
exchanges  thereof,  to  procure  leases,  options  and  loans, 
are  usually  termed  brokers. 

Agents  emploj-ed  to  buy  or  sell  real  estate,  to  negotiate  ex- 
changes thereof,  to  procure  leases,  options  and  loans,  are  usually 
termed  brokers.  Mechem  on  Ag.  Sec.  934.  "A  broker  is  one 
who  is  engaged  for  others  on  a  commission  to  negotiate  contracts 
relative  to  property,  with  the  custody  of  which  he  has  no  con- 
cern." Braun  v.  Chicago,  110  111.  186;  Kramer  v.  Bliss,  88  Va. 
456,  13  S.  E.  914.  Another  definition  is,  "Brokers  are  persons 
whose  business  it  is  to  bring  buyer  and  seller  together ;  they  need 
have  nothing  to  do  with  the  negotiation  of  the  bargain. "  Hartley 
V.  Anderson  (Pa.  Supreme),  24  A.  675;  Mechem  on  Ag.  Sec.  13. 
The  latter  clause  designates  those  agents  known  as  middle-men, 
whose  presumed  aloofness  from  partisanship  confers  upon  them 
certain  privileges.  See  Sec.  475.  A  "broker"  is  one  engaged 
in  making  contracts  for  others  relating  to  property  not  in 
his  custody,  he  acting  in  a  sense  as  agent  for  both  parties;  and 
a  salaried  agent,  not  acting  for  a  fee  or  commission,  is  not  a 
broker.    Rodman  v  Manning  (Or.  Sup.  '09),  99  P.  657,  1135. 


4  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  8.    Who  is  not  a  broker. 

A  salaried  agent  who  does  not  act  for  a  fee  or  rate  per  cent, 
for  others  is  not  a  broker,  Portland  v.  O'Neill,  1  Oregon,  218; 
Rodman  v.  Manning  (Or.  Sup.  '09),  99  P.  657,  1135.  A  trust 
company,  though  authorized  to  buy  and  sell  real  estate,  is  not  a 
broker.    Cr.  v.  Tr.  Co.,  211  Pa.  51,  60  A.  551. 

Sec.  8a.    Definition  of  term  "brokerage." 

Brokerage  is  equivalent  to  compensation  for  services  rendered. 
Myers  v.  Dean,  11  Misc.  368,  371,  32  N.  Y.  S.  237;  U.  S.  v.  Fisk, 
25  Fed.  Cas.  No.  15,  104. 

Sec.  9.    Licenses^ 

In  some  States  a  real  estate  broker,  before  he  can  lawfully 
engage  in  such  business,  must  procure  a  license.   Natt  v.  Papet, 

15  La.  306. 

Sec.  10.    How  brokers  are  appointed. 

In  the  absence  of  a  statute  to  the  contrary,  the  employment  of 
a  broker  for  the  purchase  or  sale  of  real  estate  is  a  contract  for 
his  services  and  may  be  by  parol.  Rathhurn  v.  McLay,  76  Conn. 
308,  56  A.  571;  Brown  v.  Eaton,  21  Minn.  409,  528;  Friedman  v. 
Shuttle,  85  P.  726  (xVri.  Sup.  '06,  9  Ij.  R.  A.,  N.  S.)  933 ;  Forrester- 
Duncan  Land  Co.  V.  Evatt  (Ark.  '09.),  119  S.  W.  2S2:  Hannon  v. 
Prentiss,  124  Mich.  417,  83  N.  W.  102;  Spengeman  v.  Palestine 
Bldg.  Assn.,  60  N.  J.  Law,  357,  37  A.  723 ;  McCurry  v.  Hawkins, 
83  Ark.  242,  103  S.  W.  600;  Hutto  v.  Stough,  157  Ala.  566,  47  S. 
103;  also  to  sign  his  principal's  name  to  a  contract  for  the  sale 
of  real  estate.  Rattman  v.  Wasson,  5  Kan.  552;  Pringle  v.  Spald- 
ing, 53  Barb.  (N.  Y.)  17;  Callaghan  v.  Pepper,  2  Ir.  Eq.  (N.  C.) 
399;  Coleman  v.  Garringue,  18  Barb.  (X.  Y.)  60.  In  some 
States,  the  agent,  for  this  purpose,  must  have  written  authority. 
Ballon  V.  Bergevindsen,  9  N.  D.  285,  83  N.  W.  10;  Mainwaring 
V.  Crane,  22  Quebec  Sup.  C.  67;  Lasher  v.  Gardner,  124  111.  441, 

16  N.  E.  919 ;  Charles  v.  Arthur,  84  N.  Y.  S.  284 :  Power  v.  Immi- 
gration Land  Co..  93  Minn.  247,  101  N.  W.  161 

Sec.  11.     Employment  of  sub-agents. 

Ordinarily  an  agent  is  without  authority  to  bind  his  principal 
by  the  employment  of  a  broker  to  effect  a  sale.    Bennett  v.  Howes, 


THE   CONTRACT   OF   AGENCY.  O 

15  Daily  (N.  Y.),  43,  2  N.  Y.  S.  717;  Jenkins  v.  Funk,  33  Fed. 
915;  Craver  v.  House  (Mo.  App.  '09),  120  S.  W.  686.  Even 
authority  to  take  any  steps  necessary  to  sell  the  property  is 
insufficient  to  authorize  an  agent  to  employ  a  broker  to  effect 
a  sale.  Carroll  v.  Tucker,  2  Misc.  (N.  Y.),  397,  21  N.  Y.  S.  952; 
however,  a  non-resident  owner  employing  a  non-resident  agent 
to  sell,  impliedly  authorizes  the  latter  to  employ  a  broker  or  sub- 
agent.  Eastland  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W.  574. 
And  whenever  an  agent  given  authority  to  sell  land  exercises  his 
discretion  as  to  the  price,  etc.,  he  may  employ  a  real  estate  broker 
to  find  a  purchaser,  and  a  sale  by  him  wnll  be  enforced  where  the 
agent  was  required  to  obtain  his  commission  in  addition  to  the 
price  fixed,  although  +he  agent  may  have  been  requested  by  his 
principal  n:l  lo  employ  a  sub-agent.  Renwick  v.  Bancroft,  56 
Iowa,  527,  9  N.  W.  367.  If  an  agent  employs  a  sub-agent  for 
his  principal  and  by  his  authority,  expressed  or  implied,  then 
the  sub-agent  is  the  agent  of  the  principal,  and  is  directly  respon- 
sible to  the  principal  for  his  conduct,  and  if  damage  results  from 
the  conduct  of  such  sub-agent,  the  agent  is  only  responsible  in  case 
he  has  not  exercised  due  care  in  the  selection  of  the  sub-agent.  But 
if  the  agent,  having  undertaken  to  transact  the  business  of  his 
principal,  employs  a  sub-agent,  on  his  own  account,  to  assist  him 
in  what  he  has  undertaken  to  do,  he  does  so  at  his  own  risk  and 
there  is  no  privity  between  such  agent  and  the  principal.  The 
sub-agent  is,  therefore,  the  agent  of  the  agent  only  and  is 
responsible  to  him  for  his  conduct,  while  the  agent  is  responsible 
to  the  principal  for  the  manner  in  which  the  business  has  been 
done,  whether  by  himself  or  his  servant  or  his  agent.  Mechem 
on  Agency,  Sec.  197. 

Sec.  12.    Employment  of  brokers,  and  its  limitations. 

A  broker  employed  to  sell  at  a  certain  price  can  not  recover 
commissions  for  selling  at  a  lower  price.  Blackwell  v.  Adams,  28 
Mo.  App.  61 ;  Williams  v.  McGraw,  52  Mich.  480,  18  N.  W.  227. 
A  broker,  in  order  to  bo  assured  of  compensation  for  his  services, 
should  have  a  contract  of  employment.  Castner  v.  Richardson, 
18  Colo.  496,  33  P.  163;  Day  v.  Bale,  50  111.  Ann.  115:  Dyer  v. 
Sutherland,  75  111.  583;  Thomas  v.  Merrifiehl,  7  Kan.  App.  669, 
53  P.  891 ;  Downing  v.  Buck,  135  Mich.  636,  98  N.  W.  388 ;  Crosby 


6  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

V.  St.  Paul  Lake  Ice  Co.  74  ^linn.  82,  76  N.  W.  958 ;  Coffin  v. 
Unxiveiler,  34  Minn.  320;  Whiteley  v.  Terrxj,  83  N.  Y.  App.  Div. 
197,  82  N.  Y.  S.  89;  McVicker  v.  Roche,  74  N.  Y.  App.  Div.  397, 
77  N.  Y.  S.  501 ;  Fowler  v.  Hosher,  53  N.  Y.  App  Div.  327,  65 
N.  Y.  S.  638 ;  WhiMwusc  v.  Drisler.  37  N.  Y.  App.  Div.  525,  56 
N.  Y.  S.  95;  Von  Hermann  v.  ^Yagner,  81  Hun,  431,  30  N.  Y.  S. 
991;  Johnson  v.  Whalen.  13  Okla.  320,  74  P.  (503);  Addison 
V.  Wannamaker,  185  Pa.  St.  536.  39  A.  1111 ;  Copeland  v.  Stone- 
ham  Tamiery  Co.  142  Pa.  St.  446,  21  A.  825;  Harrison  v.  Long, 
4  Desau  (S.  C),  110;  Pipkin  v.  Home  (Tex.  Civ.  App.  '02),  68 
S.  W.  \000  ■  Ehrenroth  v.  Putman  (Tex.  Civ.  App.  '00),  55  S.  W. 
190. 

In  case  the  contract  of  employment  fails  to  state  the  terms 
of  sale,  terms  satisfactory  to  the  principal  are  implied.  Fairchild 
V.  Cunningham,  84  Minn.  521,.  88  N.  W.  15;  Montgomery  v, 
Knickerbocker,  27  N.  Y.  App.  Div.  117,  50  N.  Y.  S.  128.  The 
contract  of  employment  may  be  drawn  so  as  to  deprive  the  broker 
of  any  right  to  commissions  if  the  transaction  fails  because  of  a 
defect  in  the  principal 's  title  to  the  real  estate.  Louisville  R.  Co. 
V.  Shepard,  126  Ala.  416,  28  S.  202.  If  the  agency  is  limited  to 
the  sale  of  certain  property,  the  broker  must  show  that  the  prop- 
erty sold  was  within  the  limits  of  the  contract.  Maze  v.  Gordon, 
96  Cal.  61,  30  Pac.  962 ;  Park  v.  Hagle,  124  Iowa  98,  99  N.  W.  185. 

Testimony  of  plaintiff,  in  an  action  to  recover  for  services 
in  purchasing  an  electric  plant,  that  he  went  to  defendant  and 
told  him  that  he  came  pursuant  to  a  telegram  from  a  third  per- 
son ;  that  he  told  defendant  he  had  obtained  papers  relative  to 
the  plant  and  showed  them  to  him ;  that  defendant  examined  them 
and  expressed  his  satisfaction  with  the  showing,  and  s^id  he 
wanted  plaintiff  to  represent  him  in  the  matter,  and,  if  the  plant 
was  purchased,  wanted  it  taken  in  plaintiff's  name,  and  that  he 
would  take  care  of  the  plaintiff  in  the  matter,  is  sufficient  to  show 
an  employment  by  defendant,  and  an  agreement  to  pay  the  rea- 
sonable value  of  the  services.  Hart  v.  Moloney,  80  N.  Y.  S.  293, 
80  App.  Div.  265. 

A  company  sought  employment  as  agents  for  a  com- 
mission to  procure  a  purchaser;  it  was  not  recognized  as 
such,  and  was  informed  that  a  part  of  the  premises  had 
been  sold,  and  that  an  option  contract  had  been  given  for  the 


THE   CONTRACT   OF    AGENCY.  7 

balance;  subsequently  it  wrote  the  owner  that  it  had  a  party  in 
view  whom  it  might  interest  in  the  property,  ' '  provided  we  could 
get  an  option."  The  owner  refused  to  give  the  option,  and  fixed 
the  price  per  acre  and  the  terms,  adding,  "If  you  can  do  anything 
for  me  on  these  terms  I  shall  be  glad  to  hear  from  you."  The 
company  wrote,  "Our  people  will  pay  $2,500  net."  The  owner 
agreed  to  sell,  and  the  company,  in  transmitting  the  opinion  of 
its  attorney  on  the  abstract,  referred  to  unpaid  taxes,  the  cost  of 
the  abstract,  and  a  claim  on  account  of  a  deficiency  in  the  acre- 
age, without  any  reference  to  the  commissions.  Held,  That  the 
company  was  not  the  owner's  agent  to  procure  a  purchaser, 
though  it  expected  a  commission  to  which  it  was  not  entitled. 
Steele  v.  Lawyer,  47  Wash.  266,  91  P.  958. 

Defendants  leased  mining  property  to  plaintiff,  with  an  option 
to  purchase  during  the  third  year  of  the  lease  for  $20,000,  and  a 
deed  convejang  the  property  to  the  plaintiff  was  deposited  with 
a  bank,  with  instructions  to  deliver  it  upon  receipt  of  the  sum  of 
$2,500  less  than  that  stated  in  the  option.  Held,  That  there  was 
nothing  in  the  lease  or  instructions  to  show  that  plaintiff  was  an 
agent  to  sell  the  property  on  commission.  Pollard  v.  Sayre, 
(Colo.  Sup.  '08),  98  P.  816.  In  an  action  by  a  real  estate 
broker  to  recover  commissions  for  procuring  a  purchaser  for 
defendant's  property,  a  letter  from  the  broker  stating  that  if 
the  owner  of  the  land  makes  an  exchange,  the  broker  expects  him 
to  pay  a  commission,  and  asking  him  if  he  would  do  so,  and  the 
answer  from  the  owner  that  in  case  of  a  sale  he  would  be  willing 
to  pay  a  commission,  was  sufficient  to  show  an  implied  promise  on 
the  part  of  the  owner  to  pay  what  plaintiff's  services  were  rea- 
sonably worth  on  a  subsequent  exchange  brought  about  by  the 
services  of  the  plaintiff.  Annabil  v.  Traverse  Land  Co.  (Minn. 
Sup.  '09),  121  N.W.  233. 


CHAPTER  II. 

SECTION.  SECTION. 

13.  Exclusive   employment   as   bro-       17.     Special    contracts    for    sale    of 

ker  or  agent.  real  estate. 

14.  Duration  of  the  agency.  18.     Authority  conferred  on  brokers 

15.  Termination  of  the  agency.  and  agents. 

16.  A  contract  coupled  with  an  in- 

terest. 

Sec.  13.    Exclusive  employment  as  broker  or  agent. 

An  exclusive  agency,  supported  by  a  sufficient  consideration, 
entitles  a  broker  to  commissions. on  a  sale  made  by  the  principal 
(if  excluded)  or  through  the  efforts  of  another  broker  during  the 
time  specified.  Gregory  v.  Bonney,  135  Cal.  589,  67  P.  1038; 
Crane  v.  McCortnick,  92  Cal.  176,  28  P.  222 ;  Long  v.  Herr,  10 
Colo.  380,  15  P.  802 ;  Metcalf  v.  Kent,  104  Iowa,  487,  73  N.  W. 
1037 ;  Lipscoml)  v.  Cole,  81  M».  App.  53 ;  Levy  v.  Bothe,  17  Misc. 
402,  39  N.  Y.  S.  Wo7 ;  Schultz  v.  Griffin,  5  Misc.  499,  26  N.  Y.  S. 
713;  Emhersonv.  Dean,  46  How.  Pr.  (N.  Y.)  236;  Powell  v. 
Anderson,  15  Daly,  219,  4  N.  Y.  S.  706;  Ourens  v.  Wehrle,  14 
Pa.  Super.  Ct.  536;  Sylvester  v.  Johnson,  110  Tenn.  392,  75 
S.  W.  923;  Stringfelloiv  v.  Powers,  4  Tex.  Civ.  App.  199,  23 
S.  W.  313;  Carle  v.  Parent  (Montreal  L.  R.),  5  Q.  B.  451;  Moses 
V.  Bierland,  31  N.  Y.  462. 

"Where  a  broker  is  given  the  exclusive  agency,  but  not 
inhibiting  the  principal  from  selling,  the  contract  is  not 
violated  by  a  sale  by  the  principal  to  one  not  a  customer 
of  the  broker.  English  v.  Wm.  George  Butt.  Co.  (Tex.  Civ.  App. 
'08)  117  S.  W.  996 ;  Waterman  v.  Boltinghouse,  82  Cal.  659,  23  P. 
195;  Ingold  v.  Symonds,  125  Iowa,  82,  99  N.  W.  713;  Johnson 
V.  Bucha.mn  (Tex  Civ.  App.  '09),  116  S.  W.  875;  Dole  v.  Sher- 
wood, 41  Minn.  535,  43  N.  W.  569 ;  Wylie  v.  Marine  Nat.  Bk.,  61 
N.  Y.  415;  Golden  Gate  Packing  Co.  v.  Mine,  55  Cal.  606.  A 
contract  of  agency  will  not  be  construed  to  be  exclusive,  unless 
8 


THE   CONTRACT   OF   AGENCY.  9 

established  expressly  or  by  clear  implication.  Crook  v.  Forst,  116 
Ala.  395,  22  S.  540;  Whiie  v.  Benton,  121  Iowa,  354,  96  N.  W. 
876;   Kidman  v.   Howard,   18   S.    Dak.    161,    99   N.   W.    1104. 

It  Avas  agreed  between  the  owner  of  land  and  a  broker,  that 
the  broker  should  have  the  "exclusive  agency"  for  the  sale  of 
the  land  for  a  fixed  period  at  a  fixed  price,  and  that  the  broker 
should  give  attention  to  the  sale  of  the  land,  have  the  same 
examined  and  advertised,  and  should  report  promptly  all  sales, 
etc.  The  land  aggregated  over  51,000  acres,  and  the  timber 
thereon  was  the  most  valuable  part.  Held,  That  the  words  "ex- 
clusive agency"  deprived  the  owner  of  the  right  to  sell  the 
premises,  and  a  sale  by  him  of  the  timber  before  the  expiration 
of  the  fixed  period  was  a  breach  of  the  contract.  Hunter  v. 
Wenatchee  Land  Co.  97  P.  494,  .50  Wash.  438.  (This  is  contrary 
to  the  general  doctrine  which  requires  the  exclusive  right  to 
the  agent  to  deprive  the  owner  of  the  right  to  sell.) 

A  company  was  employed  to  sell  defendant 's  property  under  a 
contract  giving  it  the  sole  agency  for  the  sale  of  the  property  for 
three  months  from  the  date  of  the  contract,  and  thereafter  until 
notified  by  defendant  in  writing  of  the  withdrawal  of  the  prop- 
erty from  sale,  and  defendant  further  agreed  to  pay  the  company 
the  agreed  commission  if  the  property  was  sold  during  the  term 
of  the  contract,  whether  sold  by  the  company  or  by  some  one 
else.  Held,  That  the  company  would  be  entitled  to  the  specified 
commission  on  the  sale  taking  place  within  three  months,  regard- 
less of  any  attempted  revocation  by  the  principal.  Novakovich 
V.  Union  Trust  Co,  (89  Ark.  412),  117  S.  W.  246. 

A  broker  is  not  entitled  to  commission  on  a  sale  by  a  principal, 
notwithstanding  he  is  given  the  exclusive  right  to  sell,  unless  it 
is  also  agreed  that  he  shal]  receive  a  commission  whether  the  sale 
be  effected  by  him,  by  the  principal,  or  some  third  person.  Tur- 
ner V.  Baker,  225  Pa.  359,  74  A.  172.  (Unless  the  principal 
agrees  to  pay  commissions  in  case  of  sale  by  him  or  another  broker, 
the  broker  prejudiced  has  a  right  of  action  for  breach  of  the 
contract.)  An  ownej*  of  property  contracted  with  a  broker 
to  make  a  sale  of  property,  and  that  in  ease  of  a  sale  thereof,  with- 
in one  year,  he  would  pay  a  commission.  Held,  That  the  sale  re- 
ferred to  was  one  consummated  by  the  broker  or  brought  about 


10  AMERICAN   liAW   REAL   ESTATE    AGENCY. 

by  him,  lie  havinj;  found  a  purchaser  and  brought  the  owner 
an*d  purchaser  together,  and  did  not  give  the  broker  the  exclusive 
right  of  sale  to  the  exclusion  of  the  owner  himself,  and  he  was 
not  entitled  to  a  commission  upon  a  sale  made  by  the  owner. 
Parkh'urst  v.  Tyron,  119  N-.  Y.  S.  184. 

Sec.  14.    Duration  of  the  agency. 

An  agency  to  sell  real  estate  is  presumed  to  continue  until  a 
sale  is  effected,  and  the  burden  is  on  the  principal  to  rebut  such 
presumption.  Hartford  v.  M cGUlicuddy ,  103  Me.  224,  68  A. 
860.  A  contract  of  agency  ordinarily  ceases  on  the  delivery  of 
the  title  papers  and  the  payment  for  the  property.  Walker  v. 
Derby,  5  Biss.  (U.  S.)  134;  CampheU  v.  Chase  (Kan.  Sup.  '08), 
96  P.  949;  Bd.  Trus.  Oherlin  ChJl.  v.  Blair,  45  W.  Va.  812,  32 
S.  E.  203.  The  vendor  sometimes  limits  the  time  within  which 
to  .sell,  to  30  or  60  days.  Beadle  v.  Sage  Ld.  cf-  hnp.  Co.  140 
Mich.  199,  103  N.  W.  554;  Satterthwaite  v.  Goodyear,  137  N.  C. 
302,  49  S.  E.  205.  A  principal  is  not  liable  for  commissions  if 
the  sale  is  not  made  until  after  the  time  fixed  his  exnired.  Hurst 
V.  Williams,  31  Ky.  Law  Kep.  658,  102  S.  W.  1176;  Dekker  v. 
Klingman,  149  Mich.  96,  112  N.  W.  727.  14  D.  L.  N.  341 ;  Horton 
V.  InrrMn,  145  Mich.  438 ;  108  N.  W.  746 ;  Loxley  v.  Studehacker, 
68  A.  98,  75  N.  J.  L.  599 ;  Ewing  v.  Lunn  CS.  Dak.  Sup.  '08),  115 
N.  W.  527.  However,  where  the  owner  w^i^ves  performance  with- 
in the  time  and  accepts  a  purchaser  furnished  after,  he  will  be 
liable  to  the  broker  for  commissions.  Tee  v.  Maxwell,  55  S.  E. 
899,  61  W.  Va.  9.  A  broker  was  held  entitled  to  compensation, 
who  found  a  purchaser  near  the  end  of  the  contract  who  desired 
time  to  examine  the  title.  Wat  sot}  v.  Brooks,  13  Fed.  540,  8 
Sawyer  Cir.  Ct.  316. 

That  the  broker  had  not  a  continuing  agency  from  Y.  for 
the  sale  of  the  property  until  the  time  of  its  sale  to  A.,  is  shown 
by  the  fact  that  when  A.  asked  him  if  he  still  had  the  property 
for  sale,  he  did  not  assert  a  continuing  agency,  but  said  that 
he  would  see,  and  then  Avent  to  Y.  to  see  if  he  could  still  be 
allowed  to  make  the  sale,  and  was  informed  by  Y.  that  he  could 
not  do  so,  as  another  had  taken  up  the  matter.  Kiefer  v.  Yoder, 
198  Pa.  St.  308,  47  A.  974. 


THE  CONTRACT  OP  AGENCY.  11 

Sec.  15.    Termination  of  the  agency. 

Ordinarily,  unless  a  contract  of  employment  is  coupled  with  an 
interest  or  is  given  for  a  valuable  consideration,  the  authority  of 
the  agent  may  be  terminated  at  will  by  giving  notice,  subject 
only  to  the  requirement  that  it  be  given  in  good  faith,  and  before 
the  broker  finds  a  purchaser.  Branch  v.  Moore,  8-1  Ark.  462,  105 
S.  W.  1178 ;  Blumenthal  v.  Goodale,  89  Cal.  251,  26  P.  906 ;  Brown 
V.  Pfau,  38  Cal.  550;  Frecland  v.  Hughes,  109  111.  App.  73; 
Y&img  v.  Trainor,  158  111.  428,  42  N.  E.  139;  Schuster  v.  Martin, 
45  111.  App.  481;  Gleason  v.  McKay,  37  111.  App.  464;  Bush 
V.  Hill,  62  111.  216 ;  ^Vilson  v.  Bxjer,  12  Ind.  App.  320,  39  N.  E. 
163 ;  Kavanaugh  v.  Ballard,  21  Ky.  L.  R.  1683,  56  S.  W.  159 ; 
Taijlor  V.  Martin,  109  La.  137,  33  S.  112 ;  Cadigan  v.  Crahtree, 
186  Mass.  7,  70  N.  E.  1033,  66  L.  R.  A.  982,  179  Mass.  474,  61 
N.  E.  37,  55  N.  E.  77;  West  v.  Demme,  128  Mich.  11,  88  N.  W. 
95;  Heaton  v.  Edwards,  90  Mich.  500,  51  N.  W.  544;  Reishus- 
Remer  Ld.  Co.  v.  Be7iner,  91  Minn.  401,  98  N.  W.  186;  Jaijne 
V.  Drake  (Miss.  Sup.  '06),  41  S.  372;  Kolh  v.  Bennett  Land  Co. 
74  Miss.  567 ;  Jones  v.  Berry,  37  Mo.  App.  125 ;  Kesterson  v. 
Chauvrant  (Mo.  App.  '02),  70  S.  W.  1091;  Green  v.  Wright,  36 
Mo.  App.  298 ;  Huffner  y.  FAlis,  64  Neb.  623,  90  N.  W.  552 ;  Slater 
V.  Holt,  10  N.  Y.  State,  257 :  Cardy  v.  Rxdh,  100  N.  Y.  S.  1043, 
115  App.  Div.  568,  103  N.  Y.  S.  1121 ;  Ahhott  v.  Hunt,  129  N.  C. 
403,  40  S.  E.  119;  Raleigh  R.  E.  &  T.  Co.  v.  Adams,  58  S.  E. 
1008,  145  N.  C.  161 ;  Vincent  v.  Woodland  Oil  Co.  165  Pa.  St. 
402,  30  A.  991 ;  Evans  v.  Gay,  38  Tex.  Civ.  App.  442,  74  S.  W. 
575;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S.  W.  892; 
Knox  v.  Parker,  2  Wash.  34,  25  P.  909.  A  power  confided  to  two 
or  more  special  agents  terminates  on  the  death  of  one.  Mechem 
on  Ag.  Sec.  250 ;  but  the  authority  is  not  revoked  by  a  letter  which 
was  not  received  by  the  broker.  Sayre  v.  Wilson,  86  Ala.  151,  5 
S.  157.  A  contract  of  agency  may  be  terminated  by  the  death  of 
the  principal.  Crowe  v.  Trickey,  204  U.  S.  228,  affirming  71 
P.  (Ariz.)  965;  Crowe  v.  Harmon,  204  U.  S.  241,  affirming* 71 
P.  (Ariz.)  1125;  Kijle  v.  Gaff,  105  Mo.  App.  672,  78  S. 'W.  1047; 
Shistler's  Est.  2  Pa.  Dist.  588;  Mechem  on  Ag.  Sec.  240;  or  by 
the  partial  destruction  of  the  subject-matter;  e.  g.  the  dwelling; 
Cox  V.  Bowling,  54  ]\Io.  App.  289.  Where  a  time  limit  has  been 
given,  the  principal  can  not  but  in  good  faith  revoke  before  it 


12  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

expires.  Bhimenthal  v.  Goodall,  89  Cal.  251,  26  P.  906 ;  Glover 
V.  Henderso7i,  170  Mo.  367,  25  S.  W.  175;  Stamets  v.  Denniso-n, 
193  Pa.  St.  518,  U  A.  575 ;  Norton  v.  Sjolseth,  43  Wash.  327,  86 
P.  573.  Where  the  contract  is  limited  to  a  definite  period,  it  ends 
at  that  time.  Zeimer  v.  Antisell,  75  Cal.  509,  17  P.  642 ;  La  Force 
V.  Washington  Vni.  106  Mo.  App.  517,  81  S.  W.  209.  The  owner 
is  under  no  obligation  to  extend  the  time  in  favor  of  a  prospective 
purchaser  found  by  the  broker;  time  is  of  the  essence  of  such  a 
contract.  Castner  v.  Richardson,  18  Colo.  496,  33  P.  163;  Watson 
V.  Brook,  11  Oregon,  271,  3  Pac.  679. 

An  agency  may  be  revoked  by  a  sale  by  the  owner  without 
notice  to  the  agent;  after  the  sale  there  is  nothing  to 
support  the  agency,  and  revocation  will  be  presumed.  ]\Iechem 
on  Ag.  220;  White  v.  Hoskins,  121  Iowa,  354,  96  N.  W. 
876;  Helling  v.  Darby,  71  Kan.  107,  79  P.  1073;  Baars  v. 
Hyland,  65  Minn.  150,  67  N.  W.  1148 ;  Hodge  v.  Appelles,  107 
N.  Y.  S.  170,  122  App.  Div.  437;  Ettinghoff  v.  Harwitz,  100 
N.  Y.  S.  1002,  115  App.  Div.  571 ;  McDonald  v.  Cabiness,  100 
Tex.  615,  102  S.  W.  721;  Hatch  v.  Coddington,  95  W.  S.  56. 
See  also  Sec.  643.  Contra,  Reams  v.  Wilson,  147  N.  C.  304, 
60  S.  E.  1124;  also.  Sec.  587.  The  agency  may  be  revoked  by 
the  exercise  of  an  option  to  purchase.  Faraday  Coal  &  Coke 
Co.  V.  Owens,  26  Ky.  L.  R.  R.  243,  80  S.  W.  1171.  Notice  to 
the  agent  terminating  the  agency  takes  effect  from  the  date 
of  the  delivery  or  receipt  thereof  by  the  agent.  Rees  v.  Pelloiv, 
97  Fed.  167,  38  C.  C.  A.  94 ;  Robertson  v.  Cloud,  47  Miss.  208. 
Violation  of  instructions  warranted  a  principal  in  terminating 
the  agency.  Macferran  v.  Gallinger,  210  Pa.  St.  74,  59  A.  435. 
Where  a  principal  wrote  his  agent  not  to  sell  property  but  his 
residence,  authority  to  sell  the  former  was  revoked.  Abbott  v. 
Hunt,  129  N.  C.  403,  40  S.  E.  119.  The  fraud  of  a  broker  in 
making  misrepresentations  in  negotiating  an  exchange  of  lands 
warranted  his  discharge.  Featherstone  v.  Trone,  82  Ark.  381, 
102  S.  W.  196.  A  contract  of  agency  determines  on  the  fraud 
of  the  agent.  Patton  v.  Cook,  48  N.  W.  994,  83  Iowa,  71.  An 
agency  for  ten  days  or  until  withdrawn  in  writing,  is  not  ter- 
minated at  the  end  of  an  extension  granted.  Clark  v.  Dalziel,  3 
Cal.  App.  121,  84  P.  429.  Where  several  brokers  have  the  same 
property  for  sale,  a  sale  by  one,  to  the  knowledge  of  the  others, 


THE  CONTRACT  OF  AGENCY.  13 

puts  an  end  to  the  contract  with  the  others.  Cashman  v.  Glover, 
11  111.  600.  Or  without  notice,  infra.  There  are  authorities  holding 
that  where  the  broker  has  incurred  expenses,  and  has  expended 
time  and  money  in  endeavoring  to  sell,  the  principal  will  not  be 
allowed  to  terminate  the  agency.  McCray  d-  Son  v.  Pfost,  118 
Mo.  App.  672,  94  S.  W.  998 ;  and  on  doing  so  the  agent  may  re- 
cover damages.  Green  v.  Cole,  103  Mo.  70,  15  S.  W.  317 ;  Diirkee 
V.  Giinn,  41  Kan.  496,  21  Pac.  637;  Bathrik  v.  Coffin,  13  N.  Y. 
App.  Div.  101,  43  N.  Y.  S.  313;  Rowan  v.  Hull,  55  W.  Va.  335, 
47  S.  E.  92;  Tappin  v.  Henley,  11  Weekly  Rep.  (Eng.)  466.  A 
contract  terminated  by  a  sale  by  the  owner  to  one  with  whom  the 
agent  had  begun  negotiations  does  not  defeat  the  broker's  right 
to  commissions.  Sylvester  v.  Johnson,  110  Tenn.  392,  75  S.  W. 
923.  Contra,  Quist  v.  Goodfellow,  99  Minn.  509,  110  N.  W.  65. 
Under  a  contract  to  continue  until  withdrawn  in  writing,  a  deed 
by  the  owner  to  a  purchaser  was  held  not  equivalent  to  a  with- 
drawal. Kimmel  v.  Shelly,  130  Cal.  555,  62  Pac.  1^)67.  This 
conflicts  with  the  well  established  rule  that  a  sale  puts  an  end  to 
the  agent's  employment. 

Where  a  purchaser  failed  to  make  payment,  and  the  o^^^ler 
declared  the  contract  at  an  end,  he  was  held  liable  to  the 
broker  for  his  commission.  Ward  v.  Cobb,  148  Mass.  518, 
20  N.  E.  174.  An  agency  once  terminated  is  not  revived  by 
subsequent  acts.  Moore  v.  Stone,  40  Iowa,  259.  A  revocation 
may  be  effected  by  notification  to  the  agent  in  writing  or  by 
parol,  even  where  power  was  given  by  deed,  or  be  implied  from 
circumstances.  Brookshire  v.  Brookshire,  8  Ired.  (N.  C.)  74. 
Where  an  agent  has  special  authority  to  do  only  a  particular 
act  no  notice  of  revocation  to  third  parties  is  necessary.  1  Par- 
sons on  Con.  71.  The  revocation  of  a  contract  with  a  broker,  after 
he  procures  a  purchaser,  does  not  operate  to  deprive  the  broker 
of  commissions.  Branch  v.  Moore,  84  Ark.  462,  105  S.  W.  1178; 
Bush  V.  Hill,  62  III.  216 ;  Provident  T.  Co.  v.  Darraugh,  168  Ind. 
29,  78  N.  E.  1030;  Gillett  v.  Corum,  7  Kan.  156;  Shepard  v. 
Hedden,  29  N.  J.  L.  334;  Reams  v.  Wilson,  147  N.  C.  304,  60 
S.  E.  1124.  The  revocation  of  a  contract  to  sell  follows  a  sale  by 
the  owner  and  no  notice  to  the  agent  is  necessary.  Wallace  v. 
Figone,  107  Mo.  App.  362,  81  S.  W.  492.  Compare,  Reams  v. 
"Wilson,  147  N.  C.  304,  60  S.  E.  1124.    Where  a  broker  has  a 


14  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

certain  time  within  which  to  effect  a  sale,  the  principal  can  not 
defeat  his  rifjht  to  compensation  by  revoking  the  agency  before 
the  expiration  of  the  time  specified.  Harrison  v.  Angerson,  115 
111.  App.  226 ;  Stamets  v.  Dennison,  193  Pa.  St.  548,  44  A.  575. 
Compare  Sec.  22.  Where  a  purchaser  is  unable  to  carry  out  his 
contract,  the  contract  with  the  broker  is  cancelled.  Riggs  v. 
Tunibull,  105  Md.  135,  66  A.  13,  8  L.  R.  A.  (N.  S.)  824.  Author- 
ity conferred  on  a  partnership  to  sell  real  estate  is  terminated  on 
the  dissolution  of  the  partnership.  Larson  v.  Newman  (N,  D. 
Sup.  '09),  121  N.  W.  202.  The  owner  of  a  lot,  who  had 
placed  it  in  a  broker's  hands  for  sale  wrote  him  that  she 
felt  at  liberty  to  withdraw  "from  the  proposition  under  consid- 
eration," if  she  chose.  The  broker  replied  that  upon  receipt  of 
her  letter  he  had  seen  his  client,  but  could  not  make  the  deal,  and 
that  it  looked  like  the  matter  was  closed,  unless  she  would  accept 
a  lower  offer.  Jleld,  That  the  broker's  letter  terminated  the 
agency  at  the  time  of  mailing,  and  he  was  not  entitled  to  com- 
missions on  a  sale  of  the  lot  negotiated  by  him  next  day.  Jackson 
V.  Parrish,  157  Ala.  584,  47  S.  1014;  Baygood  v.  Parrish,  157 
Ala.  584,  47  S.  1015. 

Under  the  stipulations  of  a  contract  listing  a  farm  with  the 
broker  for  sale,  that  if  the  farm  should  be  sold  by  the  owner, 
after  withdrawal  from  the  broker,  to  a  customer  to  whom  the 
broker  had  recommended  it,  or  who  had  learned  that  it  was 
for  sale,  directly  or  indirectly,  from  the  broker,  the  owner 
would  pay  a  designated  commission,  the  owner  is  liable  for 
the  commission  on  a  sale  to  a  customer  to  whom  the  broker 
recommended  the  farm,  whether  such  sale  was  effected,  in  whole 
or  in  part,  by  reason  of  such  recommendation  or  not.  Strout  v. 
Hubbard  (Me.  Sup.  '08),  71  A.  1020. 

Where  an  owner  employing  a  broker  to  procure  a  purchaser 
of  property  terminated  the  authority  of  the  broker,  after  re-_ 
ceiving  an  offer  from  the  person  with  whom  the  broker  was 
negotiating,  and  subsequently  dealt  directly  with  such  person, 
and  made  a  sale  for  a  price  over  twice  as  much  as  the  offer  to 
the  broker,  the  broker  was  not  entitled  to  commissions,  for  his 
authority  had  been  terminated  in  good  faith,  and  not  to  avoid 
the  payment  of  commissions.  Gardner  v.  Pierce,  116  N.  Y.  S. 
155.     Compare  Sec.  687a. 


THE  CONTRACT  OP  AGENCY.  15 

Where  the  snb-agent  derives  his  authority  solely  from  the 
agent  no  notice  is  required  to  be  given  by  the  principal  to 
the  sub-agent  of  the  revocation  of  the  agent's  authority;  but 
where  the  sub-agent  was  appointed  by  and  with  the  authority 
of  the  principal,  he  is  the  agent  of  the  principal,  and  notice 
should  be  given  to  him  of  the  revocation  of  his  authority. 
Mechem  on   Ag.,  sec.   227. 

Sec.  16.    A  contract  coupled  with  an  interest. 

An  interest  in  the  land  itself,  as  distinguished  from  the 
proceeds  of  it,  is  the  distinguishing  feature  of  a  power  coupled 
with  an  interest.  Hunt  v.  Ronsmanier,  8  Wheat.  (U.  S.)  174. 
A  contract  was  held  to  be  coupled  Avith  an  interest  where  a 
broker  was  employed  to  sell  land  procured  in  an  exchange,  the 
services  rendered  by  him  in  effecting  the  trade  being  in  part 
the  consideration  for  the  second  employment,  and  such  employ- 
ment could  not  be  revoked  at  the  mere  pleasure  of  the  principal. 
Bird  V.  Phillips,  115  Iowa,  703,  87  N.  W.  414.  An  agent  to 
receive  half  the  profits  for  selling  land  is  given  an.  interest 
only  in  the  profits  of  the  land  sold,  not  in  that  unsold.  Bick' 
ford  V.  Searles,  41  N.  Y.  S.  148,  9  App.  Div.  158,  75  N.  Y.  St. 
606.  Authority  to  retain  commissions  from  the  purchase  money 
is  not  a  power  coupled  with  an  interest.  Hall  v.  Gamhrill,  92 
Fed.  32,  34  C.  C.  A.  190.  One  authorized  to  lay  off  land  into 
lots  and  sell,  the  proceeds  above  a  certain  amount  to  be  di- 
vided with  the  owner,  has  not  a  power  coupled  with  an  interest. 
Lemmjne  v.  Quimhy,  70  Tli:  399 ;  Green  v.  Cole,  103  Mo.  70,  15 
S.  W.  317.  It  therefore  follows  that  mere  commissions  to  be 
earned  by  the  agent  in  selling  property  do  not  constitute  an 
agency  coupled  with  an  interest.  Rowan  v.  Hull,  55  W,  Va. 
335,  47  S.  E.  92;  Lindheim  v.  Cen.  Nat.  Realty,  etc.,  Co.,  97  N. 
Y.  S,  619,  111  App.  Div.  275. 

Sec.  17.  Special  contracts  with  brokers  for  the  sale  of  real 
estate. 
To  entitle  a  broker  to  commissions  or  compensation  a  con- 
tract, express  or  implied,  is  necessary.  Castner  v.  Richardson, 
18  Colo.  496,  33  Pac.  163;  Day  v.  Hale,  50  111.  App.  115; 
Stephen  v.  Scott,  43  Kan.  285,  23  P.  555:  Thomas  v.  Merrifield, 


16  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

7  Kan.  App.  669,  58  Pac.  891 ;  Holde^i  v.  Stark,  159  Mass.  503, 
34  N.  E.  1009;  Brooks  v.  Leathers,  112  Mich.  463,  70  N.  W. 
1099;  Xola7i  V.  Sivift,  111  Mieh.  56,  69  N.  W.  96;  Douming  v. 
Buck,  ]35  Mich.  636.  98  N.  W.  388;  Steidl  v.  McClymo^ids,  90 
Minn.  205,  95  N.  W.  906;  Crosby  v.  St.  Paul  Lake  Ice  Co., 
74  Minn.  82,  76  N.  W.  958;  Cofni  v.  Linxiveiler,  34  Minn.  320; 
Kinder  v.  Pope,  106  Mo.  App.  506,  80  S.  W.  315;  Whiteley  v. 
Terry,  82  N.  Y.  S.  89,  83  App.  Div.  197;  McVicker  v.  Roche, 
77  N.  Y.  S.  501,  74  App.  Div.  397 ;  Fowler  v.  Hosche,  65  N.  Y. 
S.  638,  53  App.  Div.  327;  Whitehouse  v.  Drisler,  56  N.  Y.  S. 
95,  37  App.  Div.  525;  Von  Herrmann  v.  Wagner,  30  N.  Y.  S. 
991,  81  Hun,  431;  Johnson  v.  Whalen,  13  Okla.  320,  74  P.  503; 
Addison  v.  Wannatnaker,  185  Pa.  St.  536,  39  A.  1111 ;  Copeland 
V.  Stoneham  Tan.  Co.,  142  Pa.  St.  446,  21  A.  825;  Pipkin  v. 
Home  (Tex.  Civ.  App.  '02),  68  S.  W.  1000;  Ehrenroth  v. 
Putman  (Tex  Civ.  App  '00),  p5  S.  W.  190;  Clammer  v.  Eddy, 
41  Colo.  235;  92  P.  722. 

Mere  consent  by  the  owner  to  the  rendition  of  the  services 
is  insufficient,  even  where  they  result  in  a  sale  or  exchange 
of  the  property,  Avhere  the  services  were  unsolicited.  Merrill 
V.  Lathan,  8  Colo.  App.  263,  45  P.  524;  Atwater  v.  Lockwood, 
39  Conn.  45;  Phelps  v.  Hale,  43  Colo.  255;  95  P.  925;  Viley 
v.  Petiit,  96  Ky.  576,  16  Ky.  L.  E.  650,  286,  29  S.  W.  438; 
Wilson  V.  Clark,  54  Minn.  341,  56  N.  W.  40;  Pierce  v.  Thomas, 
4  E.  D.  Smith  (N.  Y.),  354;  Haase  v.  Schneider,  98  N.  Y.  S. 
587,  112  App.  Div.  336;  Goodspeed  v.  Robinson,  1  Hilt.  (N. 
Y.)  423.  Contra,  Kinder  v.  Pope,  106  Mo.  App.  536,  80  S.  W. 
315. 

A  person  acting  as  a  broker  in  the  sale  of  real  estate,  but 
not  emploj^ed  as  such,  will  not  be  entitled  to  recover  brokerage, 
unless  it  should  appear  that  the  seller  knew,  before  the  sale 
was  consummated,  that  the  plaintiff  acted  as  a  broker.  Tink- 
ham  V.  Knox,  18  N.  Y.  S.  433,  aff'd  2  Miss.  Rep.  579,  21  N.  Y. 
S.  954;  Pallentine  v.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037. 

Where  a  broker  asks  and  obtains  the  price  of  land  from  the 
owner,  this,  without  more,  does  not  establish  an  employment 
of  agency.  Stephen  v.  Ba-iley.  149  Ala.  256,  42  S.  740;  Castner 
V.  Richardson,  IS  Colo.  496,  33  P.  163;  Denton  v.  Abrams,  105 
N.   Y.  S.  2,  120  App.  Div.  593;  White  v.  Templeton,  79  Tex. 


THE   CONTRACT   OF   AGENCY.  17 

454,  15  S.  W.  483:  Dunn  v.  Price,  87  Tex.  318,  28  S.  W.  681; 
Meston  v.  Davifis  (Tex.  Civ.  App.  96),  36  S.  W.  805;  Phelps  v. 
Hale,  43  Colo.  2.55,  95  P.  925. 

Merely  introducing  a  purchaser  to  the  owner  is  insufficient 
to  create  a  contract  of  employment,  unless  his  character  as 
agent  was,  at  the  time,  disclosed  to  the  owner.  Keener  v.  Harrod, 
2  Md.  63.  Contracts  with  brokers  for  the  sale  of  realty  are 
presumptively  entered  into  in  good  faith,  and  courts  should 
protect  the  interests  according  to  the  true  meaning  of  the  con- 
tracts. Carder  v.  O'Neill,  176  Mo.  401,  75  S.  W.  764.  A  con- 
tract to  sell  real  estate  may  be  created  by  a  letter  to  the  broker. 
Dekremen  v.  Clothier,  96  N.  Y.  S.  525,  109  App.  Div.  481; 
Jasper  v.  Wilson  (N.  M.  Sup.  '08),  94  P.  951;  Ohenauer  v. 
Solomon,  151  Mich.  570,  115  N.  W.  696.  To  create  such  a 
contract  the  letter  must  be  specific  and  certain.  Fay  v.  Sullers, 
!15  Okla.  171,  81  P.  426.  Where  an  owner  said  he  would  allow 
certain  commissions  to  a  broker  if  he  procured  a  purchaser  to 
whom  the  owner  would  be  willing  to  sell,  a  contract  was  estab- 
lished. Oliver  v.  Katz,  131  Wis.  409,  111  N.  W.  509.  Unless 
a  different  intention  clearly  appears,  authority  to  sell  will  be 
limited  to  authority  to  find  a  purchaser.  Brown  v.  Gilpin,  75 
Kan.  773,  90  P.  267;  Ross  v.  Craven  (Neb.  Sup.  '09),  121  N. 
W.  451. 

A  contract  with  a  broker  for  six  months  to  sell  realty  provid- 
ing that,  "at  such  time  as  a  sale  shall  be  effected,"  a  commis- 
sion shall  be  paid,  does  not  entitle  the  broker  to  a  commission 
on  a  sale  by  the  owner,  unassisted  by  the  broker,  within  the 
time  named.  Davis  v.  Van  Tassel,  107  N.  Y.  S.  910.  Employ- 
ing a  broker  to  procure  a  purchaser  for  real  estate,  payment 
of  commissions  to  be  made,  "as  soon  as  a  deal  is  made  for 
making  such  contract  or  deal,"  citing  owner  to  a  prospective 
buyer,  or  being  instrumental  in  any  manner  whatever,  provided 
for  a  commission  on  making  a  sale  or  producing  a  purchaser. 
McDermott  v.  Mahoney,  115  N.  W.  32,  106  N.  W.  925.  139  Iowa, 
292,  affirmed.  Finding  a  customer,  with  whom  the  principal 
concludes  a  contract  of  purchase,  does  not  give  any  right  to 
commissions,  unless  the  broker  was  the  procuring  cause  of  the 
transaction.  Quimhy  v.  Tedford.  4  Colo.  App.  210,  35  P.  276; 
Anderson  v.  Smythe,  1  Colo.  App.  253,  28  P.  478;  Babcock  v. 


18  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Merritt,  1  Colo.  App.  84,  27  P.  882;  Neufeld  v.  Oren,  60  111. 
App.  350;  Watta  v.  Hoivard,  51  111.  App.  243;  Clark  v.  Nesder, 
50  111.  App.  550;  Collier  v.  Johnson,  23  Ky.  L.  R.  2453,  67  S. 
W.  830;  Taylor  v.  Martin,  109  La.  137,  33  S.  112;  Studer  v. 
Bysoii,  92  Minn.  388,  100  N.  W.  90 ;  Francis  v.  Eddy,  49  Minn. 
447,  52  N.  W.  42;  Cathcart  v.  Bacon,  47  Minn.  34,  49  N.  W. 
331;  Putnam  v.  Howe,  39  Minn.  363,  40  N.  W.  258;  Armstrong 
,\.  Wah7i,  29  Minn.  126,  12  N.  W.  345 ;  McCrary  v.  Kellogg,  106 
Mo.  App.  '597,  81  S.  W.  465;  Crowley  v.  Somerville,  70  Mo. 
App.  376 ;  Ramsey  v.  West,  31  Mo.  App.  676 ;  Frenzer  v.  Lee 
(Neb.  Sup.  '02),  90  N.  W.  914;  Wylie  v.  Marine  Nat.  Bk.,  61  N. 
Y.  415 -Phinney  v.  Chesebro,  87  N.  Y.  App.  Div.  409,  84  N.  Y.  S. 
449 ;  Johnson  v.  Lord,  54  N.  Y.  S.  922,  35  App.  Div.  325 ;  Ware 
V.  Dos  Passos,  4  N.  Y.  App.  Div.  32,  38  N.  Y.  S.  673 ;  Woolley  v. 
Buhler,  73  Hun,  158,  25  N.  Y.  S.  1045;  South  v.  Seattle,  etc., 
R.  Co.,  72  Hun,  202,  25  N.  Y.  S.  368;  Hay  v.  Piatt,  66  Hun, 
488,  21  N.  Y.  S.  362 ;  White  v.  Tw itching s,  26  Hun,  503 ;  Mara- 
cella  V.  Odell,  3  Daly  (N.  Y.),  123;  Harris  v.  Boertnell,  2  Daly 
(N.  Y.),  ]89;  Woods  v.  Barton,  47  N.  Y.  S.  184,  21  Misc.  326; 
Randruff  v.  Schrocdcr.  46  N.  Y.  S.  943,  21  Misc.  52;  Burke  v. 
Pfe/fer,  68  N.  Y.  S.  799,  34  Misc.  774;  Broivn  v.  Shelton  (Tex. 
Civ.  App.  '93),  23  S.  W.  483.    See  also  Sec.  446. 

A  letter  written  to  a  broker  advising  him  that  if  he  could 
purchase  certain  described  real  estate  the  signer  thought  he 
would  be  ready  to  purchase  the  same  on  the  succeeding  Mon- 
day at  a  specified  price  was  not  a  sufificient  note  or  memorandum 
of  a  contract  to  employ  a  broker  to  purchase  the  property  re- 
quired by  Civil  Code,  section  1624.  Logan  v.  McMullen,  4  Cal. 
App.  154,  87  P.  285. 

A  broker  mailed  to  his  client  a  blank  contract  of  employment 
for  his  signature,  containing  the  price,  terms  of  sale,  and  a 
stipulation  for  five  per  cent,  commissions  The  owner  did  not 
sign  the  contract,  but  wrote  that  the  broker  might  sell  to  any 
person  not  an  Armenian.  Held,  that  the  owner's  reply  was  an 
express  acceptance  of  each  of  the  terms  of  the  contract  sub- 
mitted, including  the  rate  of  commission,  Baird  v.  Loescher,  98 
P.  49  (Cal.  App.  '08^. 

Defendant  having,  before  acceptance,  withdrawn  his  offer  for 
the  purchase  of  land  carried  by  plaintiff  on  his  books  for  sale 


THE  CONTRACT  OP  AGENCY.  19 

for  the  owner,  no  promise  or  word  with  reference  to  the  pay- 
ment of  commissions  by  defendant  being  shown,  is  not  liable 
for  commissions.     Donnelly  v.  Chetejian,  115  N.  Y.  S.  125. 

Sec.  18.  Authority  conferred  on  real  estate  brokers  and 
agents. 

One  buying  from  a  non-resident  owner,  through  a  real  es- 
tate broker,  is  bound  to  ascertain  his  authority  and  the  corre- 
spondence by  which  it  is  established.  Merritt  v.  Wasenich,  49 
Fed.  785;  Sullivant  v.  Jahren,  71  Kan.  127,  79  P.  1071;  Mechem 
on  Ag.,  sees.  276,  288,  290.  Authority  to  negotiate  a  sale  to 
one  person,  on  particular  terms,  is  insufficient  to  authorize  a 
subsequent  sale  to  a  different  person.  Graves  v.  Horton,  38 
Minn.  66,  35  N.  W.  568 ;  compare  Smith  v.  May  field,  60  111.  App. 
266.  A  letter  from  a  principal  is  sufficient  authority  for  the 
agent  to  sell  according  to  its  terms.  Stadelman  v.  Fitzgerald, 
14  Neb.  290;  Montgomery  v.  Amster  (T.  C.  A.  '09),  122  S.  W. 
307 ;  West  V.  Mills,  82  N.  Y.  S.  473,  83  App,  Div.  629 ;  Johnson 
V.  Huher  (Kan.  Sup.  '09),  103  P.  99.  Authority  to  sell  for  cash 
and  time  does  not  warrant  a  sale  for  more  cash  and  less  time. 
Speer  v.  Craig,  16  Colo.  478,  27  Pac.  891;  Taylor  v.  Read  (Tex. 
C.  A.  '08),  113  S.  W.  191.  Authority  to  sell  for  half  cash  is 
complied  with  by  a  sale  for  cash  on  delivery  of  the  deed.  With- 
erell  v.  Murphy,  147  Mass.  417,  18  N.  E.  215.  Without  special 
authority  an  agent  to  collect  rents  can  not  pay  a  debt  of  his 
principal.  Phillips  v.  Belden,  2  Edw.  (N.  Y.)  Ch.  1.  Author- 
ity to  locate  and  survey  land  confers  no  authority  to  sell.  Moore 
V.  Lockett,  2  Bibb.  (Ky.)  67.  Authority  to  sell  and  convey 
lands  for  cash,  includes  authority  in  the  agent  to  receive  pay- 
ment of  the  purchase  money.  Yerby  v.  Grigshy,  9  Leigh.  (Va.) 
387.  Compare  Halsell  v.  Renfrew,  14  Okl.  674,  78  Pac.  118, 
affirmed  202  U.  S.  287.  Authority  to  make  contracts  for  the 
sale  of  lands  authorized  the  agent  to  receive  so  much  money 
as  is  paid  in  hand  on  the  sale,  as  an  incident  to  the  power  of 
sale.     Yerby  v.  Grigsby,  9  Leigh   fVa.),  387. 

An  agent  to  sell  lands  on  credit  has  no  authority  to  receive 
payment,  nor  before  due,  nor  in  anything  but  money.  Mann 
V.  Robinson,  19  W.  Va.  49,  An  agent  has  no  authority  to  give 
an  extension  of  time   to   the   purchaser  to   make   a  payment. 


20  AMERICAN  LAW  RE.V1.  ESTATE  AGENCY. 

Gerrish  v.  Maker,  70  111.  470.  Authority  to  employ  lawyers 
to  secure  the  right  and  title  of  the  principal  to  certain  land, 
does  not  authorize  a  conveyance  of  half  of  the  land  to  them 
for  their  services  and  for  their  agreeing  to  provide  for  the  ex- 
penses of  a  suit  to  confirm  the  title,  and,  in  case  of  success, 
to  pay  to  them  a  certain  sum  in  addition.  Blum  v.  Robert  son, 
24  Cal.  128.  An  agent  appointed  to  rent  and  care  for  real 
estate  has  no  authority,  in  his  own  name,  to  recover  possession 
from  the  holder  of  a  tax  title.  McHenry  v.  Painter,  58  Iowa, 
365.  An  agent  authorized  to  enter  into  a  written  contract  for 
the  sale  of  real  estate  can  not  enter  into  a  verbal  agreement 
therefor.  Barmig  v.  Peirce,  5  Watts  &  S.  (Pa.)  548.  To  sell 
in  lots  does  not  authorize  a  sale  otherwise,  and,  if  made,  the 
same  will  be  set  aside.     Bice  v.  Tavenier,  8  Minn.  248. 

The  receipt  of  an  agent,  authorized  to  sell  and  convey  land, 
who  enters  into  a  contract  for  his  principal  with  a  purchaser, 
binds  his  principal.  Peck  v.  Harriott,  6  Serg.  &  R.  (Pa.)  146. 
Authority  of  an  agent  to  sell  a  lot  for  $5,500  net,  does  not 
support  a  sale  for  $5,500  gross,  made  nine  months  after  when 
the  property  has  greatly  advanced  in  value.  Wassweyler  v. 
Martin,  78  Wis.  59,  46  N.  W.  890;  Colvin  v.  Blanchard,  106 
S.  W.  (Tex.  Civ.  App.  '07)  823;  Schmidt  v.  Chittenden,  98 
P.  48  (Cal.  App.  '08).  A  letter  from  a  principal  to  his  agent 
stating,  '  *  I  am  glad  you  have  sold  the  88  acres ;  now,  sell  the 
40,"  is  not,  under  the  Missouri  statute,  an  authorization  in 
writing  for  the  sale  of  the  additional  forty  acres.  Johnson  v. 
Fecht,  185  Mo.  335,  83  S.  W.  1077.  And  a  letter  by  a  principal 
to  his  agent  stating,  "I  am  just  in  receipt  of  your  favor  of 
the  5th  inst.  regarding  sale  of  the  40-acre  tract  of  land,  and 
in  reply  would  say  as  follows:  Have  deed  made  out  and  sent 
to  me  for  signing,  as  I  can  not  say  definitely  when  I  will  be 
able  to  return,"  etc.,  the  letter  of  the  agent  replied  to,  without 
disclosing  the  name  of  the  proposed  vendee,  stated  that  the 
agent  had  sold  the  forty  acres  on  the  south  side  of  the  railroad 
for  $1,000,  and  that  "this  completes  the  sale  of  the  whole  tract 
for  $4,000,"  and  concluded  by  asking  whether  they  should  send 
the  deed  to  be  executed,  or  whether  he  would  soon  be  home. 
Held,  That  the  principal's  letter  was  insufficient  to  constitute  a 


THE  CONTRACT  OF  AGENCY.  21 

written  ratification  of  the  sale.  Johnson  v.  Fecht,  185  Mo.  335, 
83  S.  W.  1077. 

A  contract  of  sale  executed  by  a  broker  under  stale  authority 
will  not  be  specifically  enforced.  Hall  v.  Gambrill,  92  Fed.  32, 
34  C.  C.  A.  190.  An  agreement  by  a  broker  to  give  a  pur- 
chaser possession  in  ninety  days  was  beyond  the  scope  of  his 
authority.  Hopkins  v.  Everly,  150  Pa.  St.  117,  24  A.  624,  30 
"Weekly  Notes  Cas.  393.  Power  to  sell  any  or  all  of  constitu- 
ent's real  estate,  authorizes  the  sale  of  that  acquired  subse- 
quently. Fay  V.  Winchester,  4  Mete.  (Mass.)  513;  Burkey  v. 
Judd,  22  Minn.  287.  Power  to  sell  all  land  the  principal  has 
not  conveyed,  authorizes  the  sale  of  that  sold  but  not  con- 
veyed. Mitchell  V.  Maupin,  3  T.  B.  Mon.  (Ky.)  185.  In  Illi- 
nois a  power,  not  under  seal,  will  authorize  the  attorney  to 
sell  but  not  to  convey  the  land.  Watson  v.  Sherman,  84  111. 
263,  267,  A  broker  authorized  to  sell,  partly  for  cash  and 
partly  on  time,  has  discretion  to  determine  the  amount  of  the 
cash  payment.  Taylor  v.  Cox  (Tex.  Supreme  '87),  7  S.  W.  69. 
If  an  agent  be  authorized  in  fact,  though  inoperative  in  law  to 
bind  his  principal,  no  recovery  can  be  had  against  the  agent. 
Thomson  v.  Davenport,  2  Smith's  L.  C.  366;  Walker  v.  Bk.  of 
St.  N.Y.,9  N.  Y.  582 ;  She/fidd  v.  Ladue,  16  Minn.  388 ;  Duncan 
V.  Kites,  32  111.  532;  Scery  v.  Socks,  29  111.  313;  Abbey  v. 
Chase,  6  Cush.  (Mass.)  54;  Leronx  v.  Brown,  12  C.  B.  (Eng.) 
801;  Aspinwall  v.  Torrence,  1  Lans.  (N.  Y.)  381;  Smont  v. 
Illory,  10  M.  &  W.  (Eng.)  1.  The  mere  insertion  in  an  instru- 
ment, without  consideration,  that  it  is  irrevocable,  is  i::opera- 
tive.  Walker  v.  Deuison,  86  111.  162.  Authority,  in  writing, 
left  with  an  agent  after  revocation  may,  by  its  exercise,  bind 
the  principal  as  to  third  persons  without  notice.  Beard  v.  Kirk, 
11,N.  H.  397. 

A  sale  by  a  broker  at  $1,500,  one  month  after  he  said  he 
could  not  sell  at  that  price  and  asked  for  lower  terms,  was 
without  authority.  Matthews  v.  Sowle,  12  Neb.  398.  Abbrevia- 
tions used  in  the  authority  to  an  agent,  easily  understood  by 
those  familiar  with  land  titles,  did  not  make  the  authority  void 
for  uncertainty.  Meline  v.  Rufflno,  129  Cal.  514,  62  P.  93. 
A  letter  to  an  agent  to  sell  real  estate,  the  buyer  to  pay  the 
commissions,  is  sufficient  authority  to  sell  on  the  terms  stated. 


22  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Weaver  v.  Snivebj,  73  Neb.  35,  102  N.  W.  77.  Proof  of  au- 
thority to  make  a  loan  does  not  give  authority  to  collect  the 
principal  or  interest.  Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E. 
665.  Ordinarily  the  authority  of  an  agent  terminates  on  the 
death  of  the  principal.  Kyle  v.  Gaff,  105  ^lo.  App.  672,  78  S. 
W.  1047.  A  real  estate  agent  is  bound  by  the  precise  terms 
of  his  contract,  and  the  principal  is  not  bound  by  departures 
therefrom.  Balkene  v.  Searle,  116  Iowa,  374,  89  N.  W.  1087; 
Campbell  v.  Chose  (Kan.  Sup.  '08),  96  P.  949;  In  re  Fairmount 
Cab  Co.  (Com.  PI.).  9  Pa.  Co.  Ct.  R.  201;  Hagler  v.  Ferguson 
(Tex.  Civ.  App.  '08),  111  S.  W.  673;  Jones  v.  Halleday,  2 
App.  Cas.  (D.  C.)  279.  A  contract,  in  writing,  was  held  to 
be  insufficient  in  failing  to  state  the  amount  of  the  commissions 
to  be  paid  to  the  broker.  Zimmerman  v.  Zahender,  164  Ind. 
466,  73  N.  E.  920 ;  Foote  v.  Bobbins,  50  Wash.  277,  97  P.  103. 

In  New  York  a  contract  to  sell  real  estate  signed  by  a  son, 
by  direction  of  the  father,  was  held  insufficient  to  confer  au- 
thority upon  the  broker.  Cohen  v.  Boccuzzio,  86  N.  Y.  S.  187, 
42  Misc.  544.  Compare  Sec.  74.  A  contract  of  sale  made  by  an 
agent  in  excess  of  his  authority  is  not  binding  on  his  prin- 
cipal. Strong  \\  Boss,  33  Ind.  App.  586,  71  N.  E.  918;  Staten 
V.  Hammer,  121  Iowa,  499,  96  N.  W.  964;  Fleming  v.  Burke, 
122  Iowa,  433,  98  N.  W.  288;  Hagler  v.  Ferguson  (Tex.  Civ. 
App.  '08),  111  S.  W.  673. 

A  broker  has  no  implied  authority  to  bind  the  principal  by 
signing  a  contract  of  sale,  nor  to  fix  the  terms,  nor  materially 
to  change  the  terms  without  the  principal's  consent.  Sullivant 
v.  Jahren,  71  Kan.  127,  79  P.  1071;  Larson  v.  O'Hara,  107  N. 
AV.  821,  98  Minn.  71 ;  Hardizer  v.  Columbia,  50  Wash.  405,  97 
P.  790;  Hutchins  v.  Westheimer,  51  Wash.  539,  99  P.  577.  An 
agent  in  whose  hands  lands  are  placed  for  sale,  is  not  thereby 
authorized  to  sign  a  contract  of  sale.  Jones  v.  Howard,  234  111. 
404,  84  N.  E.  1041;  Bowland  v.  Hall,  106  N.  Y.  S.  55,  121  App. 
Div.  459;  Keim  v.  O'Reilly,  54  N.  J.  Eq.  418,  34  A.  1073;  Sten- 
gel V.  Sergeant  (N.  J.  Eq.),  '08,  68  A.  1106;  Ettinger  v.  Weaih- 
erhead,  29  Ohio  Cir.  Ct.  R.  137;  Gault  Lumber  Co.  v.  Pyles 
(Okla.  Supreme  '07\  92  P.  175;  Colvin  v.  Blanchard  (Texas 
Supreme  '07),  106  S.  W.  323;  Watson  v.  Milliken,  27  App.  (D. 
C.)   500;  Syllisin  v.  Hanson,  48  Wash.  608,  94  P.  187;  Flyal 


THE  CONTRACT  OF  AGENCY.  23 

V.  DotvUng  (Or.  Sup.  '09),  102  P.  ITS;  Light  v..  Daggett  (S.  D. 
Sup.  '09),  121  X.  W.  862;  Lawson  v.  King  (Wash.  Sup.  '09), 
104  P.  1118. 

A  broker  to  sell  lands  has  no  authority  to  collect  or  to  re- 
ceive the  purchase  price;  and  a  purchaser  who  pays  him,  with- 
out asking  for  his  written  authority,  does  so  at  his  risk.  Halsell 
V.  lie nf row,  14  Okla.  674,  78  P.  118,  aff 'd  202  U.  S.  287.  Compare 
Yerhy  v.  Grigshy,  9  Leigh  (Va.),  387.  Authority  to  a  broker 
to  sell  and  bind  the  owner  by  a  contract  must  be  certain  and 
specific  as  to  terms  and  description.  Oault  Lumber  Co.  v.  Fyles 
(Okla.  Supreme  '07),  92  P.  175.  Authority  to  sell  land  for 
cash  and  on  long  time  did  not  authorize  the  broker  to  make 
the  notes  for  deferred  payments  paj'able  on  or  before  certain 
dates.  Cclvin  v.  Blanchnrd  (Tex.  Civ.  App.  '07),  106  S.  W. 
323.  Authority,  in  writing,  to  sell  for  $19,000,  to  net  the  owner 
$18,000,  was  held  to  authorize  the  agent  to  execute  a  contract 
of  sale.  Id.  A  broker  authorized  to  sell  for  $8,000,  $3,000  cash, 
is  entitled  to  commissions  on  finding  one  willing  to  pay  cash 
on  delivery  of  the  deed.     Goss  v.  Brocfm.,  31  Minn.  484, 

In  the  absence  of  special  authority  a  broker  has  no  power 
to  conclude  a  contract  for  the  purchase  and  sale  of  lands.  Ham- 
ilton V.  Cutts,  6  Mackey  (D.  C),  208;  Ryan  v.  McGee,  2  Mackey 
(D.  C),  17;  Coleman  v.  Garrigue,  17  Barber  (N.  Y.),  60;  Hal- 
sey  v.  Monterio,  92  Va.  581,  24  S.  E.  258 ;  McCidlmigh  v.  Hitch- 
cock, 71  Conn.  4^1,  42  A.  81;  Campbell  v.  Galloivay,  148  Ind. 
440,  47  N.  E.  818;  Balkeme  v.  Searles,  116  Iowa,  374,  89  N. 
W.  1087;  Dickman  v.  Updike  (N.  el.  Err.  &  App.  '01),  49  A. 
712;  Armstro7}g  v.  Loive,  76  Cal.  616,  18  P.  758;  Jones  v.  Halla- 
day,  2  App.  Cas.  (D,  C.)  277;  Mannix  v.  Hildreth,  2  App,  Cas. 
(D.  C.)  259;  Roach  v.  Coe,  1  E.  D.  Smith  (N.  Y.),  175:  Brand- 
rup  v.  Britton,  11  N.  D.  376,  92  N.  W.  453;  Carstens  v.  Mc- 
Reavy,  1  Wash,  359  25  P,  471 ;  Keim  v.  Lindley,  54  N.  J.  Eq. 
418,  30  A,  1063. 

A  real  estate  broker  employed  to  find  a  purchaser  is  not 
authorized  to  execute  a  contract  of  sale  in  behalf  of  his  prin- 
cipal ;  his  authority  is  limited  to  the  power  of  finding  a  pur- 
chaser satisfactory  to  the  principal,  where  there  is  no  stipula- 
tion, express  or  implied,  to  the  contrary,  Rutenberg  v,  Madn, 
47  Cal.  213;  Rundle  v.  Cutting,  18  Colo.  337,  32  P.  994;  Malone 


24  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

V.  McCullough,  15  Colo.  460,  24  P.  1040;  Johnson  \.  Dodge, 
17  III.  433;  Gilbert  v.  Baxter,  71  Iowa,  327,  32  N.  W.  364; 
Stillman  v.  Fitzgerald,  37  Minn.  186,  33  N.  W.  564;  Scull  v. 
Broutim,  55  N.  J.  Eq.  489,  37  A.  740;  O'Reilly  v.  Keim,  54 
N.  J.  Eq.  418,  34  A.  1073;  Edivards  v.  Davidson  (Tex.  Civ. 
App.  '04),  79  S.  W.  48;  Kramer  v.  Blair.  88  Va.  456,  13  S.  E. 
914;  Davis  v.  Gordon,  87  Va.  559,  13  S.  E.  35. 

"While  it  is  trne  that  the  power  to  sign  the  name  of  the 
principal  may  be  given  verbally,  the  words  used  for  the  pur- 
pose should  be  distinct  and  clear  in  their  meaning  and  import, 
and  should,  Avith  the  requisite  degree  of  certainty,  manifest 
the  intention  of  the  principal  to  do  something  more  than  merely 
to  employ  a  broker.    Duffy  v.  Tlohson,  40  Cal.  240. 

Where  an  agent  is  employed  to  secure  a  purchaser  for  real 
estate  within  a  certain  time,  for  certain  commissions,  he  can 
not  recover  unless  he  furnishes  a  purchaser  within  that  time. 
Ice  V.  Maxwell,  61  West  Va.  9,  55  S.  E.  899. 

Laws  of  1893,  p.  161,  provides  that  in  cities  of  300,000  in- 
habitants or  more,  any  person  who  shall  offer  for  sale  any  real 
property,  without  the  written  authority  of  the  owner  of  such 
property,  etc.,  shall  be  deemed  guilty  of  a  misdemeanor.  De- 
fendants, husband  and  wife,  at  plaintiff's  request,  delivered 
to  plaintiff  a  written  option  prepared  by  defendants,  whereby 
they  agreed  to  sell  certain  property  for  a  given  price  and  on 
the  day  following,  defendant's  wife,  the  owner  of  the  prop- 
erty, offered  in  writing  to  pay  plaintiff  a  certain  commission 
on  a  sale  at  the  price  named.  Jleld,  that  the  two  writings,  when 
construed  together,  authorized  plaintiff*  to  sell  the  property. 
Holbrook-Blacliwell  R.  E.  Co.  v.  Bartman,  128  Mo.  App.  228, 
106  S.  W.  1115. 

The  ordinary  authority  of  a  real  estate  agent  to  sell  land 
is  simply  to  find  a  purchaser,  he  having  no  power  to  bind  his 
principal  by  a  contract  of  sale,  unless  it  appears  that  it  was 
intended  to  confer  upon  him  such  additional  authority.  Stem- 
ler  V.  Bass,  153  Cal.  79,  96  P.  809;  Weatherhead  v.  Ettinger, 
78  0.  S.  104,  84  N.  E.  598;  Foss  Inv.  Co.  v.  Ater,  49  Wash. 
446,  95  P.  1017. 

Ordinarily  a  broker  has  no  implied  authority  to  buy  or  sell 


THE   CONTRACT   OF   AGENCY.  25 

the  property  of  another  in  his  own  name.  Reed  v.  Light,  170 
Ind.  550,  85  N.  E.  9. 

Though  the  expression  "to  sell"  is  sometimes  used  in  ilie 
sense  of  an  executed  contract  of  sale,  or  an  agreement  to  sell, 
as  defined  by  Civil  Code,  Sec.  1727,  the  expression,  when  used 
in  a  contract  giving  a  real  estate  broker  the  exclusive  right 
"to  sell"  real  estate,  has  acouirefl  n  restricted'  meaning,  and, 
standing  alone,  the  words  "to  sell"  are  not  sufficient  to  au- 
thorize the  broker  to  enter  into  a  contract  of  sale  binding  the 
owner.    Bacon  v.  Davis,  9  Cal.  App.  65,  98  P.  71. 

Where  a  broker's  contract  of  authority  authorized  him  to 
negotiate  for  a  sale  of  the  lands  in  question  at  $5  per  acre  for 
thirty  days,  and  the  owners  bound  themselves  to  execute  good 
conveyances  to  such  purchasers  as  the  broker  might  produce,  on 
payment  of  the  price,  the  term  "negotiate"  imported  authority 
on  the  part  of  the  broker  to  make  a  binding  sale  agreement  and 
the  contract  therefore  did  not  limit  the  authority  to  find  a  pur- 
chaser ready  and  able  to  pay  the  price.  Comhes  v.  Adams,  63 
S.  E.  186;  Cow.hcs  v.  Stewart,  150  N.  C.  64 

An  agent  employed  to  sell  real  estate,  and  not  authorized  to 
execute  a  contract  of  sale  or  an  instrument  of  conveyance,  is 
only  an  agent  to  find  a  buyer.  Manker  v.  Tough  (Kan.  Sup. 
'08),  98  P.  792. 

Where  before  the  time  limited  for  selling  the  property  ex- 
pired, the  broker  requested  an  extension  of  time,  which  the 
principal  refused,  the  fact  that  in  doing  so  he  stated  to  the 
broker  that  he  hoped  that  he  would  sell  the  property,  and  that 
he  would  be  glad  to  assist  him,  did  not  confer  an  authority 
upon  the  broker  to  sell  the  property  after  the  expiration  of  the 
time  limited.  La  Force  v.  Wash.  Univ.,  106  Mo.  App.  517, 
81  S.  W.  209. 

Under  the  Code  defining  "sell"  as  a  contract  by  which  one 
engages  for  a  price  to  transfer  to  another  a  certain  thing,  etc., 
an  instrument  executed  by  an  owner  employing  a  broker  to 
procure  a  purchaser  of  real  estate,  which  recites  that  in  con- 
sideration of  the  services  of  the  broker  the  owner  authorizes 
him  "to  sell  for  me,  in  my  name,  and  receipt  for  deposit  there- 
on," for  a  specified  time,  the  property  described,  for  a  price 
fixed,  and  agrees  to  "sell  and  convey  by  a  good  .  .  .  grant," 


26  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

etc.,  gives  the  broker  authority  to  contract  for  the  sale  to  a 
purchaser  procured  by  him.  Bacon  v.  Davis,  9  Cal.  App.  65, 
98  P.  71. 

Where  a  broker's  contract  of  authority  authorized  him  to 
negotiate  for  a  sale  of  the  land  in  question  at  $5  per  acre  for 
thirty  days,  and  the  owners  bound  themselves  to  execute  good 
conveyances  to  such  purchasers  as  the  'brokers  might  produce, 
on  payment  of  the  price,  the  term  "negotiate"  imported  au- 
thority on  the  part  of  the  brokers  to  make  a  binding  contract 
of  sale,  and  the  contract  did  not  therefore  limit  their  authority 
to  finding  a  purchaser  ready,  able  and  willing  to  pay  the  price. 
Cambes  v.  Adams,  150  N.  C.  64,  63  S.  E.  186. 


CHAPTER  III. 

SECTION.  SKCTION. 

19.  l^udum    pactum,    a    ci>ntiact  constituent    of    an    enforce- 

to  be  effective  must  he  based  able  contract. 

upon  a  consideration.  22.     Revocation        of        autliority 

20.  Unilateral  contracts.  granted  to  the  agent. 

21.  Consideration  as  an  essential  23.     Repudiation   or   rescission   of 

the  contract. 

Sec.  19.    Nudum  pactum,  a  contract  to  be  effective  must  be 
based  upon  a  consideration.  * 

A  contract  by  a  person  having  no  interest  in  the  transaction, 
to  pay  a  commission  if  a  sale  is  effected,  is  void,  unless  sup- 
ported by  a  consideration.  Smyth  v.  Mack,  19  N.  Y.  S.  347,  64 
Hun,  639.  Release  of  an  existing  indebtedness  for  commissions, 
due  in  a  mutual  contract  for  the  sale  of  land,  is  a  new  contract 
and  must  be  based  on  a  consideration,  and  an  oral  statement 
by  the  agent  that  he  claims  no  commissions  is  not  therefore 
sufficient  to  show  a  release.  Metcalfe  v.  Kent,  104  Iowa,  487, 
73  N.  W.  1037:  McComh  v.  Vo7i  Ellert.  27  N.  Y.  S.  372,  7  Misc. 
R.  59.    See  also  Sec.  788. 

AVhere  A,  without  any  existing  employment,  exhibits  a  house 
to  one  who  rents  from  the  owner,  a  promise  by  the  owner,  made 
thereafter,  to  pay  A  for  his  services,  is  without  consideration. 
Sharp  V.  Hooper  (N.  J.  Sup.  '06),  64  A.  989 ;  Bagnole  v.  Madden, 
69  A.  967,  76  N.  J.  L.  255;  Wolverton  v.  Tuttle,  51  Ore.  501, 
94  P.  961. 

Where  a  broker  Avas  employed  to. effect  an  exchange  of  prop- 
erties and  has  earned  his  commissions  by  obtaining  a  valid  agree- 
ment therefor,  an  agreement  subsequently  made  to  claim  no 
commissions,  unless  deeds  pass  or  his  client's  title  proves  un- 
marketable, is  without  consideration.  Mosloivitz  v.  Hornberger, 
46  N.  Y.  S.  462,  20  Misc.  Rep.  558 ;  RohJcohl  v.  Sussman,  113  N. 
Y.  S.  586,  61  Misc.  246.    See  also  Sec.  788. 

27 


28  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

A  broker  is  not  entitled  to  commissions  on  an  exchange  of 
properties,  where  he  did  nothing,  and  does  not  show  that  he 
was  excused  from  rendering  services.  Walto7i  v.  McMorrow,  39 
N.  Y.  App.  Div.  667,  57  N.  Y.  S.  691.  The  mere  insertion  in 
an  instnnnent  that  it  is  irrevocable,  is  without  consideration 
and  inoperative.  WalJccr  v.  Dcnison,  86  111.  162.  An  agree- 
ment* by  an  agent,  throuo-h  misstatement,  to  reduce  his  com- 
missions was  held  to  be  without  consideration.  Dayt&n  v.  Am. 
Steel- Range  Co.,  73  N.  Y.  S.  316,  79  N.  Y.  S.  1130,  76  App. 
Div.  454,  36  Misc.  R.  223.  An  agreement  to  pay  an  agent  two 
and  one-half  per  cent,  on  sales  made  by  the  vendor  is  without 
consideration.  Wright  v.  Fulling,  93  N.  Y.  S.  228,  104  App. 
Div.  49.     Compare  Sec.  42. 

A  promise  made  under  an  erroneous  belief  to  pay  a  com- 
mission is  without  consideration,  no  service  having  been  ren- 
dered, and  the  broker  is  not  entitled  to  recover.  Bellesheim  v. 
Palm,  66  N.  Y.  S.  273,  54  App.  Div.  77. 

Where  defendant  agreed  to  pay  plaintiff  the  reasonable  value  ' 
of  his  services,  and  there  was  no  agreement  that  such  value 
should  be  fixed  by  defendant,  at  least  until  after  the  services 
had  been  performed,  such  a  stipulation  Avas  unilateral,  with- 
out consideration,  and  not  enforceable.  Walker'  Mfg.  Co.  v. 
Knox,  136  Fed.  334,  69  C.  C.  A.  160. 

Where  an  owner  of  land  revoked  an  agent's  authority  to 
sell,  and  told  the  agent  that  he  would  be  taken  care  of  as  if 
he  had  made  the  sale,  and  the  owner  then  made  a  sale  through 
his  own  efforts,  the  promise  to  the  broker  was  without  consid- 
eration, Cronin  v.  American  Securities  Co.  (Ala.  Sup.  '09), 
50  S.  915. 

Sec.  20.    Unilateral  contracts. 

Although  an  agreement  signed  by  a  real  estate  owner  to 
pay  an  agent  a  certain  commission  in  the  event  that  the  owner 
shall  make  a  sale  is  a  unilateral  contract,  and  invalid  on  its 
face,  yet  where  the  agent  goes  to  the  expense  of  advertising 
and  endeavoring  to  sell,  this  is  a  sufficient  partial  performance 
to  render  it  enforceable.  Lapham  v.  Flint,  86  Minn.  376,  90 
N.  W.  780;  Schoenman  v.  Whitt,  136  Wis.  332,  117  N.  W.  851. 

Where  defendant  was  authorized  by  the  owner  of  land  to 


THE  CONTRACT  OF  AGENCY.  29 

sell  it  and  agreed  to  share  the  commissions  with  the  plaintiff, 
in  case  the  latter  found  a  purchaser,  the  contract  was  unilateral, 
and  binding  on  neither  party  until  the  plaintiff  found  a  pur- 
chaser. Wefel  y.  Stillman,  151  Ala.  249,  44  S.  203.  See  also 
Sec.  397. 

A  contract  by  the  owner  to  pay  another  a  commission  on  a 
sale  of  property,  whether  effected  by  the  owner  or  agent,  is  a 
unilateral  contract,  and  where  the  owner  unaided  in  any  way 
by  the  agent,  effects  a  sale,  the  agent  can  not  recover  commis- 
sions; but  if  the  agent  effects  the  sale  his  commissions  are  re- 
coverable. Taylor  v.  Barhour,  90  Miss.  885,  44  S.  988;  Hum- 
phries &  J.  V.  Smith,  5  Ga.  App.  340,  63  S.  E.  248. 

Sec.  21.    Consideration  as  an  essential  constituent  of  an  en- 
forceable contract. 

Where  one  employs  another  as  agent  to  sell  land,  the  con- 
tract is  based  upon  a  sufficient  consideration.  Rowan  v.  Hull, 
55  W.  Va.  335,  47  S.  E.  92;  Gilmore  v.  Samuels  (Ky.  Ct.  App. 
'09),  123  S.  W.  271.  The  lower  price  for  which  defendants 
secured  the  real  estate  is  a  sufficient  consideration  to  support 
an  agreement  to  pay  plaintiff's  a  certain  sum  as  commissions, 
in  order  to  obtain  the  property  at  the  price  for  which  the  owner 
was  willing  to  sell  it,  provided  he  M^as  relieved  from  the  pay- 
ment of  commissions,  the  owner  not  being  willing  to  sell  at 
that  price  unless  he  was  so  relieved.  Deitsch  v.  Feder,  S6  N, 
Y.  S.  802. 

An  agreement  made  by  a  broker  after  the  sale  to  wait  for 
the  payment  of  his  commissions  until  the  title  passed,  was  un- 
supported by  a  consideration.  Hough  v.  Baldwin,  99  N.  Y.  S. 
545,  50  Misc.  R.  546;  Shields  v.  Sierret  (N.  J.  Sup.  '09),  71 
A.  1129. 

In  States  requiring  a  written  contract  with  a  broker  to  sell 
real  estate,  a  subsequent  express  promise  to  pay  the  broker  a 
commission  is  without  consideration  to  support  an  oral  employ- 
ment. Stout  V.  Humphrey,  69  N  J.  Law  436.  55  A.  281;  Bag- 
noli  V.  Madden,  76  N.  J.  L.  255,  69  A.  967. 

In  another  case  in  the  same  State,  it  was  held  that  where 
the  agent  advertised  the  property  for  sale  at  auction  and  se- 
cured the  services  of  an  auctioneer,   and  the  owner  sold  the 


30  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

property  privately  and  promised  to  pay  the  agent  for  his  ser- 
vices, the  promise  was  based  upon  a  sufficient  consideration. 
Grifflth  V.  Dalij,  56  N.  J.  Law  466,  29  A.  169. 

An  agent  desisting  from  efforts  to  sell,  upon  the  owner's 
promise  to  pay  commissions,  is  a  sufficient  consideration  to 
support  a  verdict  for  half  the  commissions.  Ware  v.  Kerivin, 
48  N.  Y.  S.  884,  24  App.  Div.  198.  Where  the  quantity  of  land 
fell  short  of  what  the  owner  supposed  he  possessed,  and  the 
broker  agreed  to  a  diminution  of  compensation,  the  agreement 
was  upon  a  sufficient  consideration.  Brunson  v.  Blair,  44  Tex. 
Civ.  App.  43,  97  S.  W.  337.  A  broker  who  introduced  a 
prospective  buyer  to  the  owner  prior  to  his  employment  as  agent, 
and  the  owner  made  the  sale  himself,  was  held  not  entitled  to  a 
commission.  Bassford  v.  West,  124  Mo.  App.  248,  101  S.  W.  610; 
see,  also.  Sections  68  and  450.  A  release  of  an  existing  debt 
for  commissions  is  a  new  contract  and  must  be  based  on  a  con- 
sideration. Metcalfe  v.  Kent,  73  N.  W.  1037,  104  Iowa,  487. 
Where  a  broker,  requested  by  the  owner  of  property  to  find  a 
purchaser  at  a  certain  price,  showed  the  property  to  the  defend- 
ant, who  told  him  he  could  do  better  by  buying  it  himself  from 
the  owner,  and  if  he  bought  would  pay  the  broker  a  commission, 
the  promise  was  a  sufficient  consideration.  Abra]iam  v.  Goldberg, 
25  N.  Y.  S.  1113,  6  Misc.  R.  43. 

A  contract  for  such  time  as  may  be  mutually  agreeable,  did 
not  ^ind  plaintiff  except  for  what  had  been  actually  done,  and 
a  subsequent  agreement  with  defendant  to  pay  a  different  rate 
for  effecting  the  sale  of  a  particular  property  was  upon  a  valid 
consideration.  Forbes  v.  Bushnell.  47  ]\Iinn.  402,  50  N.  W.  368. 
In  an  action  by  a  broker  to  recover  commissions  for  a  sale  of 
real  estate  to  the  United  States,  the  only  service  shown  by 
plaintiff  that  he  intensified  public  opinion  to  establish  a  military 
post  in  the  neighborhood,  was  held  to  be  an  insufficient  con- 
sideration to  support  a  verdict  for  the  plaintiff.  Com'l  Nat.  Bk. 
V.  Hav'kins,  35  111.  App.  463. 

Sec.  22.     Revocation  of  authority  granted  to  the  agent. 

If  a  broker  has  had  a  reasonable  time  to  find  a  purchaser,  the 
principal  may,  in  good  faith,  revoke  the  employment  without 
incurring  liability.     Blumenthal   v.    Goodall,   89    Cal.   251,   26 


THE  CONTRACT  OF  AGENCY.  31 

P.  906;  Collier  v.  Johnson,  23  Ky.  L.  R.  2453,  67  S.  W.  830; 
Cadigan  v.  Crahtree,  186  Mass.  7,  70  N.  E.  1033,  66  L.  R.  A.  982; 
Jayne  v.  Drake  (Miss.  Sup.  '06),  41  S.  372;  Kolh  v.  Bennett,  74 
Miss.  567;  Turner  v.  Snyder,  132  Mo.  App.  320,  111  S.  W.  858; 
Loving  v.  Hesperian  C.  Co.,  176  Mo.  330,  75  S.  W.  1095 ;  MiUer 
V.  Wehrman  (x\eb.  Sup.  '08),  115  N.  W.  1078;  Slater  v.  Holt, 
10  N.  Y.  St.  257;  Abbott  v.  F««/,  129  N.  C.  403,  40  S.  E.  119; 
Simpson  v.  Carson,  11  Oregon,  361,  8  P.  325;  Newton  v.  Conness 
(Tex.  Civ.  App.  '08),  106  S.  W.  892;  -Evans  v.  Gaij,  38  Tex. 
Civ.  App.  442,  74  S.  W.  575 ;  Knox  v.  Parker,  2  Wash.  34,  25  P. 
909;  Rowa.n  v.  Hull,  55  W.  Va.  335,  47  S.  E.  92;  Cranin  v. 
American  Securities  Co.   (Ala.  Sup.  '09),  50  S.  915. 

A  principal  revoking  the  agency  must  act  in  good  faith,  and 
not  for  the  purpose  of  evading  liability  for  the  broker's  services, 
Bailey  v.  Smith,  103  Ala.  641,  15  S.  900;  TJphof  v.  Ulrich.  2  111. 
App.  399 ;  Beeler  v.  Cresswell,  3  Md.  196 ;  Cadigan  v.  Crabtree, 
186  Mass.  1,  70  N.  E.  1033,  66  L.  R.  A.  982;  Alden  v.  Earle, 
56  N.  Y.  Super.  Court,  366,  4  N.  Y.  S.  548 ;  Neal  v.  Lehnuin,  11 
Tex.  Civ.  App.  461,  34  S.  W.  153;  Peach  River  Lumber  Co.  v. 
Montgomery  (Tex.  Civ.  App.  '08),  115  S.  W.  87.  If  the  broker 
has  found  a  responsible  purchaser  before  the  receipt  of  the 
notice  of  revocation  the  principal  will  be  liable  on  his  contract 
for  commissions.  Tilden  v.  Smith  (S.  D.  Sup.  '10),  124  N.  W. 
841;  Montgomery  v.  AinsUe  (Tex.  C.  A.  '09),  122  S.  W.  307; 
Cadigan  v.  Crabtree,  186  Mass.  7,  70  N.  E.  1033,  66  L.  R.  A.  982; 
Reishus-Remel  Ld.  Co.  v.  Benner,  91  Minn.  401,  98  N.  W.  186; 
Canadian  Imp.  Co.  v.  Cooper,  161  Fed.  279.  Power  to  revoke 
must  be  distinguished  from  the  right  to  revoke.  Mechem  on  Ag., 
Sec.  209. 

Where  the  only  instructions  given  to  an  agent  are  that  he 
shall  visit  a  certain  addition,  sell  some  lots  and  pay  the  sum 
demanded  as  part  of  the  price,  without  any  limitation  upon  his 
discretion,  the  principal  cannot  rescind  any  contract  made  by 
the  agent  for  the  purchase  of  lots,  or  recover  any  sum  paid  on 
account  thereof,  unless  a  failure  of  consideration,  a  defect  in  the 
title,  or  other  like  circumstance  be  made  to  appear.  Boulder 
Inv.  Co.  V.  Fries,  31  P.  174;  2  Colo.  App.  373.  An  agency 
coupled  with  an  interest  is.  within  the  time  stated,  irrevocable. 
Bird  V.  Phillips,  115  Iowa,  703,  87  N.  W.  414 ;  Stam^ts  v.  Denni- 


32  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

son,  193  Pa.  St.  548,  44  A.  575.  The  death  of  the  principal  or  a 
partial  destruction  of  the  subject-matter  works  a  revocation. 
Cox  V.  Bowling,  54  Mo.  App.  289.  Also  the  principal's  disposi- 
tion of  his  interest  in  the  subject-matter  of  the  agency.  Frazier 
V.  Cox  (Ky.  Ct.  App.  '10),  125  S.  W.  148. 

A  contract  of  agency  cannot,  but  in  good  faith,  be  revoked 
before  the  expiration  of  the  time  allotted  and  the  principal 
escape  liability  to  the  broker.  Blumenthal  v.  Goodall,  89  Cal. 
251,  26  P.  906;  Glover  v.  Henderson,  120  Mo.  367,  25  S.  W.  175; 
Stamets  v.  Dennison,  193  Pa.  St.  548;  compare  Harrison  v. 
Anger  son,  115  111.  App.  226.  A  broker  is  not  entitled  to  com- 
missions on  a  sale  by  the  owner  of  real  estate  made  in  good  faith 
after  the  revocation  of  his  authority  to  one  with  whom  the 
broker  negotiated  before  the  time  expired.  Zeiner  v.  Antisell, 
75  Cal.  509,  17  P.  642;  Farrar  v.  Brodt,  35  111.  App.  617; 
Learned  v.  McCoy,  4  Ind.  App.  238,  30  N.  E.  717;  Fultz  v. 
Winer,  34  Kan.  576,  9  P.  316 ;  Aniisdell  v.  Canfield,  119  Mich. 
229,  77  N.  W.  944;  LaForce  v.  Wash.  Uni.,  106  Mo.  App.  517,  81 
S.  W.  209;  Page  v.  Griffith,  71  Mo.  App.  524;  Gardner  v.  Pierce, 
116  N.  Y.  S.  155;  Beauchamp  v.  Higgins,  20  Mo.  App.  514; 
Sattertwhaite  v.  Vreela^id,  48  How.  Pr.  (N.  Y.)  508,  3  Hun, 
152;  Neal  v.  Lehman,  11  Tex.  Civ.  App.  461,  34  S.  W.  153; 
Cardij  V.  Ruth,  100  N.  Y.  S.  1043,  115  App.  Div.  568,  103  N.  Y.  S. 
1121;  Newton  v.  Conncss  (Tex.  Civ.  App.  '08),  106  S.  W.  892; 
Siegel  v.  Rosenzwcig,  1 14  N.  Y.  S.  179 ;  compare  Griswold  v. 
Pierce.  86  111.  App.  406,  et  al.,  Sec.  557. 

A  contract  of  agency  is  revoked  by  a  notice  of  the  exercise  of 
an  option  to  purchase.  Faraday  Coal  &  Coke  Co.  v.  Owens,  26 
Ky.  L.  R.  243,  80  S.  W.  1171.  A  vendee,  defrauded  by  his 
agent,  may  rescind  the  contract  of  sale  and  reclaim  the  money 
paid.  Kennedy  v.  McKay,  43  N.  J.  L.  288.  Where  defendant 
authorized  the  plaintiff  to  sell  his  farm  at  $50  an  acre,  a  letter 
of  plaintiff  desiring  a  modification  so  as  to  sell  at  $48  or  $49 
an  acre  did  not  operate  to  revoke  the  plaintiff's  first  authority. 
Fuller  V.  Brady,  22  111.  App.  174.  Acts  of  the  agent  after  a 
revocation  bind  the  principal  as  to  third  parties  without  notice. 
Murphy  v.  Ottcnheimer,  84  111.  39;  Beard  v.  Kirk,  11  N.  H.  397; 
Hancock  v.  Byrne,  5  Dana  (Ky.),  514;  Lamothe  v.  St.  Louis, 
etc.,  R.  Co.,  17  Mo.  204.    After  the  revocation  of  written  author- 


THE  CONTRACT  OF   AGENCY.  33 

Ity,  his  acts,  if  the  writing  be  left  in  the  hands  of  the  agent,  may 
bind  the  principal  by  the  agent's  exhibiting  the  instrument  as 
his  apparent  authority  to  parties  without  notice.  Beard  v.  Kirk, 
11  N.  H.  397;  Story  on  Ag.,  Sec.  470. 

Where  a  real  estate  broker,  employed  to  procure  a  purchaser 
for  a  farm,  procured  a  buyer  who  agreed  with  the  owner  on  the 
terms  of  sale,  and  the  buyer  was  given  to  a  fixed  date  to  pur- 
chase, unless  the  owner  sold  in  the  meantime,  before  the  time 
fixed  the  buyer  told  the  owner  that  he  would  not  buy  without 
also  procuring  adjacent  land,  which  he  could  not  do,  the  owner 
then  stated  to  the  buyer  that  the  matter  was  settled  between 
them,  and  later,  on  the  same  day,  the  buyer  told  the  owner  that 
he  would  take  the  farm  on  the  terms  agreed,  it  was  held  that 
the  broker  had  earned  his  commission,  though  no  sale  was  made, 
the  owner's  statement  to  the  buyer  not  constituting  a  revocation 
of  the  broker's  authority  to  procure  a  buyer.  Sallee  v.  McMur- 
ray,  113  Mo.  App.  253,  88  S.  W.  157;  compare  Bailey  v.  More- 
head,  122  Mo.  App.  268,  99  S.  W,  973. 

The  revocation  of  a  contract  with  an  agent  to  take  charge  of 
property,  rent  the  same  and  collect  the  rents,  before  any  rents 
were  collected,  made  the  principal  liable  to  compensate  the 
agent  for  the  services  rendered.  New  Kanawha  C.  &  M.  Co.  v. 
"Wright,  163  Ind.  529,  72  N.  PJ.  550.  Defendant  agreed  to  pay 
plaintiff  one  dollar  an  acre  for  finding  a  purchaser  for  a  certain 
farm  at  $37.50  per  acre;  after  introducing  a  purchaser,  but 
before  sale,  defendant  wrote  the  plaintiff  that  he  had  no  hopes 
of  making  a  sale  to  such  prospective  purchaser,  and  that  the 
owners  of  the  land  required  $35  net  per  acre,  which  price  had 
been  quoted  to  the  proposed  purchaser,  that  if  plaintiff  still 
desired  to  assist,  to  make  his  commissons  from  the  purchase 
price  over  $35  per  acre,  he  was  at  liberty  to  proceed,  otherwise 
the  arrangement  would  be  revoked;  it  was  held  that  such  letter 
did  not  constitute  a  revocation  of  plaintiff's  authority  so  as  to 
deprive  him  of  the  right  to  the  contract  commission,  on  the  sub- 
sequent consummation  of  a  sale  to  such  purchaser.  Provident 
Trust  Co.  V.  Darraugh,  168  Ind.  29,  78  N.  E.  1030. 

Where  a  broker  was  employed  to  sell  land  for  $75,000  at  a 
commission  of  $2,000,  and  after  he  had  introduced  a  purchaser 
his  authority  was  revoked  and  the  land  was  sold  by  his  employer 


34  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

for  $65,000,  the  broker  was  held  entitled  to  recover  only  his 
contract  commissions,  with  interest  thereon,  and  not  the  cus- 
tomary commissions,  or  the  reasonable  value  of  his  services. 
McGovcrn  v.  Bennett,  146  Mich.  558.  109  N.  W.  1055,  13  D.  L. 
N.  853 ;  see,  also,  Sec.  572.  The  fact  that  the  broker,  not  having 
an  exclusive  agency,  has  entered  into  a  contract  of  sale  on  dif- 
ferent terms,  of  which  the  principal  has  no  notice,  does  not 
affect  the  principal's  right  to  revoke  the  agency  through  a 
previous  sale  to  another.  Weisels-GerJiart  li.  E.  Co.  v.  Wain- 
tvright,  127  Mo.  App.  514,  105  S.  W.  1096. 

An  exclusive  agency,  for  a  valuable  consideration,  given  for  a 
period  of  seven  days,  was  revoked  by  notice  within  the  time, 
so  that  a  purchaser  who  bought  from  the  agent  after  such 
revocation,  though  within  the  seven  days,  had  no  enforceable 
contract  of  sale,  the  agent,  however,  might  have  an  action 
against  his  principal  for  a  breiach  of  the  contract.  Norton  v. 
Sjolseth,  43  Wash.  327,  86  P.  573;  compare  Cadigan  v.  Crah- 
tree,  192  Mass.  233,  78  X.  E.  412.  In  a  well  considered  case  it 
was  held  that  a  revocation  in  fraud  of  a  broker's  rights  would 
not  amount  to  a  revocation.  Cadigati  v.  Crahtree,  192  Mass.  233, 
78  N.  E.  412.  This,  however,  conflicts  Avith  the  doctrine  of  the 
owner's  power  to  revoke.     Mechem  on  Ag.,  Sec.  209. 

Defendant  signed  a  contract  reciting  a  sufficient  consideration 
by  which  he  authorized  plaintiffs,  as  his  agents,  to  sell  a  tract 
of  land  for  a  stated  price,  and  to  execute  a  binding  contract  in 
that  behalf.  Afterward,  defendant  wrote  plaintiffs  that  his  wife 
refused  to  sign  a  deed  for  such  price,  stating  that  they  might 
as  well  take  the  land  off  the  market.  To  this  plaintiff  replied, 
in  effect  assenting,  and  asking  for  defendant's  lowest  price  for 
the  land,  and  stating,  ""When  we  hear  from  you  we  will  see  what 
we  can  do."  Held,  that  by  such  letters  the  agency  was  entirely 
abrogated,  leaving  the  matter  at  large  for  new  negotiations  be- 
tween the  parties.    Lacey  v.  Thomas,  164  F.  623. 

An  agreement  by  an  owner  of  premises,  upon  a  valuable  con- 
sideration, to  extend  the  time  within  which  the  broker  might 
sell,  to  such  time  as  the  broker  could  get  a  prospective  purchaser 
to  bind  itself  to  buy  cannot  be  cancelled  by  the  owner,  without  the 
broker's  consent,  so  long  as  negotiations  are  going  on  between 
the  broker  and  the  prospective  purchaser  with  a  prospect  of 


THE  CONTRACT  OF  AGENCY.  35 

eventual  sale  within  a  reasonable  time.  Luhn  v.  Fordtran  (Tex. 
Civ.  App.  '09),  115  S.  W.  667,  writ  of  error  denied  by  Supreme 
Court.  The  dissolution  of  a  partnership  will  operate  as  a  revoca- 
tion of  the  power  to  sell;  but  a  mere  change  in  the  name  of  the 
firm,  where  the  new  firm  is  composed  of  the  same  members  as 
the  old,  does  not  operate  to  revoke  an  agency,  conferred  upon  it, 
the  identity  remaining  the  same.  Mechem  on  Agency,  Sec.  221. 
Where  a  broker  is  not  employed  for  a  definite  time,  the 
employment  may  be  revoked  at  will;  but  where  he  is  employed, 
for  a  definite  time,  the  agency  can  be  revoked  only  in  accordance 
with  some  express  or  implied  condition  of  its  continuance. 
Blumenthal  v.  Bridges  (Ark.  Sup.  '09),  120  S.  W.  974.  Under 
a  contract  of  employment  of  a  broker  for  a  definite,  term,  where 
the  principal  has  not  the  right  to  revoke  the  agency  directly,  he 
cannot  do  so  by  selling  the  property  himself.  Blumenthal  v. 
Bridges  (Ark.  Sup.  '09),  120  S.  W.  974.     See  Sec.  490. 

Sec.  23.    Repudiation  or  rescission  of  the  contract. 

If  a  purchaser  wishes  to  repu.diate  a  contract  to  purchase  on 
the  ground  that  his  agent  has  secretly  received  commissions 
from  the  seller,  he  must  act  promptly  and  make  restitution  as 
far  as  possible.  Lightcap  v.  Nicola,  34  Pa.  Super.  Ct.  189.  A 
broker  is  not  entitled  to  commissions  where  the  purchaser 
repudiates  an  informal  contract.  Gilchrist  v.  Clarke,  86  Tenn. 
583,  8  S.  W.  572 ;  Sloman  v.  Bodwell,  24  Neb.  790,  40  N.  W.  321. 
Or  an  unauthorized  contract.  Myers  d^  King  v.  Coleman  (Miss. 
'08),  46  S.  249.  The  same  is  true  where  the  vendor  promptly 
repudiates  a  contract  of  sale,  made  subject  to  his  approval,  and 
returns  the  money  paid  to  the  purchaser.  Powell  v.  Binney,  54 
Neb.  690,  74  N.  W.  1073.  Where  an  agent  wa^  authorized  to 
execute  a  note  and  mortgage  on  land  purchased,  the  principal 
was  precluded  from  repudiating  the  act.  Foiich  v.  Wilson,  59 
Ind.  13. 

Where  a  decedent,  prior  to  the  purchase  of  real  estate,  agreed 
to  pay  plaintiff  who  negotiated  the  purchase  one-third  of  the 
profits  to  be  derived  from  a  subsequent  sale  thereof;  no  time 
for  the  sale  was  fixed  and  the  purchaser  having  died  without 
making  sale,  his  personal  representative  repudiated  plaintiff's 
interest  and  refused  to  sell,  though  the  property  had  largely 


36  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

increased  in  value;  it  was  held  that  decedent  under  the  con- 
tract was  required  to  make  a  sale  within  a  reasonable  time,  and 
after  repudiation  of  plaintiff's  rights  he  was  entitled  to  recover 
one-third  of  the  value  of  the  land  in  cash,  after  deducting  the 
purchase  price,  taxes  and  interest.  Kauffman  v.  Bailie,  46 
Wash.  248,  89  Pac.  548. 

Where  an  owner  takes  no  steps  to  repudiate  a  contract  made 
by  an  agent,  and  accepts  the  benefits  thereunder,  he  ratifies  the 
contract  and  is  liable  to  the  purchaser  for  a  breach  thereof. 
Ettingcr  v.  Weaiherhead,  29  Ohio  Cir.  Ct.  R.  137.  In  order 
to  obtain  the  rescission  of  an  agreement,  where  the  broker  had 
been  guilty  of  constructive  fraud,  the  purchaser  was  required 
to  pay  the  former  the  value  of  his  services.  Banna  v.  Haynes, 
42  Wash.  284,  84  Pac.  861.  Delay  in  bringing  suit  for  the  re- 
scission of  a  contract  on  the  ground  of  fraud  does  not  defeat 
the  right  to  the  relief  sought,  where  there  has  been  no  change 
in  the  position  of  the  parties  to  render  it  inequitable.  Lightcap 
v.  Nicola,  34  Pa.  Super.  Ct.  189.  Compare  Bassett  v.  Brown, 
105  Mass.  551.  The  repudiation  of  a  contract  by  the  vendee 
bars  recovery  of  the  in.stallments  of  purchase  money  paid. 
McKinne  v.  Harvie,  38  Minn.  18,  35  N.  W.  668. 


CHAPTER  IV. 

Section  24.     Ratification. 

Sec.  24.    Ratification. 

Before  a  principal  can  be  bound  upon  the  ground  of  ratifica- 
tion, it  must  appear  that  he  had  full  knowledge  of  all  the  ma- 
terial facts  affecting  his  interest  in  the  transaction.  Maze  v. 
Gordon,  96  Cal.  61,  30  Pac.  962;  T{crr  v.  Sharp,  83  111.  199; 
Rowan  v.  Hyatt,  45  N.  Y.  138 ;  Ferguson  v.  Gooch,  24  Va.  1,  26 
S.  E.  397 ;  Williams  v.  Moore,  24  Tex.  Civ.  App.  402,  58  S.  W. 
953.     See  also  Sec.  624. 

The  ratification  of  the  act  of  an  unauthorized  broker  makes 
the  principal  liable  to  compensate  him  for  his  services.  Merrill 
V.  Latham,  8  Colo.  App.  263,  45  P.  524;  Hoyt  v.  Tuxhury,  70 
111.  331 ;  Downing  v.  Buck,  135  ]\Iich.  636,  98  N.  W.  388 ;  Dayton 
V.  Am.  Steel  Barge  Co.,  73  N.  Y.  S.  316,  36  Misc.  223.  See  also 
Sees.  620,  621. 

The  same  rule  holds  true  where  the  broker  was  employed  by 
an  unauthorized  third  party.  McKinnon  v,  Hope,  118  Ga.  462, 
45  S.  E.  413;  Hurt  v.  Jones.  105  Mo.  App.  106,  79  S.  W.  486; 
Charles  v.  Cook,  84  N.  Y.  S.  867,  88  App.  Div.  81 ;  Lyle  v.  Ben- 
nett, 70  N.  Y.  S.  283,  34  Mi.sc.  476 ;  Markham  v.  Washburn,  18 
N.  Y.  S.  355 ;  Graves  v.  Bains,  78  Tex.  92,  14  S.  W.  256 ;  Mc- 
Cormack  v.  McCaffery,  74  N.  Y.  S.  836,  36  Misc.  775.  This  is 
especially  the  case  if  at  the  time  the  principal  has  knowledge 
that  the  broker  assumed  to  act  for  him.  Twelfth  St.  Market  Co. 
V.  Jackson,  102  Pa.  St.  269;  Gillespie  v.  Dick  (Tex.  Civ.  App. 
'08),  111  S.  W.  664. 

In  the  absence  of  a  contract  of  employment,  it  is  sufficient 
that  the  defendant  adopted  and  ratified  the  plaintiff's  acts. 
Chilton  V,  Butler,  1  E.  D.  Smith  (N.  Y.),  150;  Jjawler  v.  Arm- 
strong (Wash.  Sup.  '09),  102  P.  775.  And  such  ratification, 
relates  back  to  the  making  of  the  contract.    Clark  v.  Van  Reins- 


38  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

deck,  9  Cranch  (U.  S.),  153;  Bohy  v.  Cassitt,  78  111.  638;  Goodell 
V.  Woodru/f,  20  111.  191;  Bell  v.  Byerson,  11  Iowa,  233;  Bar- 
hour  V.  Craig,  6  Litt.  (Ky.)  213;  Myers  v.  Simmons,  19  La.  Ann. 
370;  Williavns  v.  Mitchell,  17  Mass.  98;  LoM;ri/  v.  Harris,  12 
]\Iinn.  255 ;  Baker  v.  Byrne,  10  Miss.  193 ;  Cowan  v.  Wheeler,  31 
Me.  439;  Despatch,  etc.,  v.  Bellamy  Mfg.  Co.,  12  N.  H.  205; 
L2/o«s  V.  P?/a#^,  51  N.  J.  Eq.  60,  26  A.  334;  Como  v.  P^.  Henry 
Co.,  12  Barb.  (N.  Y.)  27;  Wei  singer  v.  W/iecier,  14  Wis.  109. 

A  principal,  however,  is  not  bound  by  the  ratification '  of  a 
sale  of  real  estate  made  by  a  broker,  if  the  approval  was  brought 
about  by  misstatements  of  the  broker  as  to  the  terms  of  the  sale. 
Rowan  v.  Hyatt,  45  N.  Y.  138;  Edivards  v.  Davidson  (Tex.  Civ. 
App.  '04),  79  S.  W.  48;  Halscy  v.  Monteiro,  92  Va.  581,  24  S. 
E.  258. 

Although  the  written  agreement  entered  into  by  the  broker 
may  have  been  so  imperfectly  executed  as  not  to  bind  either  of 
the  principals,  they  both  ratified  it  and  became  bound  by  its 
provisions,  by  their  letters  and  by  the  execution  and  tender 
of  the  deed  for  the  premises.  Lyons  v.  Pyatt,  51  N.  J.  Eq.  60, 
26  A.  534;  Ettinger  v.  Wcatherhead,  29  Ohio  Cir.  Ct.  R.  137. 

A  sale  of  real  estate  by  the  owner  to  a  purchaser  with  whom 
a  broker  had  unauthorizedly  negotiated  was  not  a  ratification  of 
the  agency  of  such  broker.  Loving  Co.  v.  Hesperian  Cattle 
Co.,  176  Mo.  330,  75  S.  W.  1095 ;  Copeland  v.  Stoneham  Tannery 
Co.,  142  Pa.  St.  446,  21  A.  825 ;  Williams  v.  Moore,  24  Tex.  Civ. 
App.  402,  58  S.  W.  953.     See  also  Sec.  618. 

In  other  cases,  where  the  broker  negotiated  sales  in  violation 
of  his  instructions,  and  the  owner,  by  correspondence  or  other- 
wise, agreed  thereto,  the  acts  were  ratified.  Sleeper  v.  Murphy, 
120  Iowa,  132,  94  N.  W.  275;  Gelatt  v.  Ridge,  117  Mo.  553,  23 
S.  W.  882 ;  Smith  v.  Schiele,  93  Cal.  144,  28  P.  857 ;  Nesbit  v. 
Helser,  49  Mo.  383 ;  Suydam  v.  Vogel,  84  N.  Y.  S.  915. 

Where,  by  the  terms  of  the  contract  a  warranty  deed  should 
have  been  executed  at  a  certain  time,  and  about  that  time  a 
special  warranty  deed  was  forwarded  to  the  owner  who  had 
executed  the  contract,  by  a  clerk  in  the  office  of  one  who  had 
authority  to  collect  rents,  etc.,  for  the  land-owner,  the  purchaser 
refused  to  accept  such  deed,  and  the  one  who  had  executed  the 
contract  returned  it  to  the  sender ;  subsequently  a  letter  was  re- 


THE    CONTRACT    OF    AGENCY.  39 

ceived  by  the  one  who  had  executed  the  contract  stating  that 
the  land-owner  would  execute  no  other  deed,  signed  with  the 
firm  name,  one  of  the  names  being  the  same  as  that  of  the  land- 
owner, but  he  was  not  shoAvn  to  have  been  a  member  of  the  firm. 
Held,  that  it  not  appearing  that  the  owner  knew  of  the  con- 
tract, no  ratification  was  shown.  Topi  iff  v.  Shadwell,  64  Kan. 
884,  67  P.  545 ;  Stemler  v.  Bass,  153  Cal.  791,  96  P.  809 ;  Foss 
Inv.  Co.  V.  Ater,  49  Wash.  446,  95  P.  1017 ;  Larson  v.  Newman 
(N.  D.  Sup.  '09),  121  X.  W.  202. 

A  broker  procured  to  be  made  to  himself  a  deed  of  land 
which  he  was  employed  to  sell,  the  grantor  intending  it  only 
as  a  means  of  carrying  into  effect  a  supposed  sale  to  a  third 
party,  but  the  grantee  secretly  intending  to  obtain  the  land  to 
his  own  use,  and  also  fraudulently  misrepresenting  the  value 
of  the  consideration,  which  consisted  of  certificates  of  stock  in 
mining  companies.  Held,  that  the  deed  was  not  void,  but  only 
voidable,  and  that  if  the  grantor,  who  soon  learned  the  facts 
entitling  him  to  an  avoidance,  neglected  for  more  than  two  years 
to  do  any  act  to  avoid  it,  and  exchanged  the  stock  for  other 
stocks,  he  must  be  taken  to  have  ratified  the  conveyance,  and 
could  not  maintain  a  writ  of  entry  to  recover  the  land.  Bassett 
V.  Brown,  105  Mass.  551.  Compare  Lightcap  v.  Nicola,  34  Pa. 
Super.  Ct.  189. 

Where  defendant's  husband  had  an  interview  with  plaintiff 
in  regard  to  a  sale  of  her  land,  and  that  in  response  to  a  letter 
from  plaintiff  the  husband  called  at  the  office  and  was  intro- 
duced to  T,  and  the  latter  showed  defendant  and  her  husband 
land  that  he  wished  to  exchange,  but  it  did  not  satisfy  defend- 
ant ;  afterward  she  accepted  another  offer  made  by  T.  to  buy 
the  land ;  on  the  trial  defendant  and  her  husband  attempted  to 
suppress  their  own  testimony,  and  their  conduct  justified  the  be- 
lief that  defendant  had  authorized  or  ratified  her  husband's 
act.    Sims  v.  Bockwell,  156  Mass.  372,  31  N.  E.  484. 

An  unauthorized  contract  of  sale  is  binding  upon  a  principal 
when  ratified  through  another  duly  authorized  agent.  Iloyt  v. 
Tnxbury,  70  111.  331.  A  principal  may,  by  accepting  the  pro- 
ceeds, ratify  a  sale  made  by  his  broker  upon  false  represen- 
tations. Kelly  V.  Cnrler,  55  Ark.  112,  17  S.  W.  706;  Powell  v. 
Gasson,  18  B.  Monroe  (Ky.),  179;  Stockhridge  v.  West  Stock- 


40  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

hridge,  14  IMass.  257,  261;  Vaughn  v.  Sheridan,  50  Mich.  155; 
Kriuner  v.  Beach,  25  Hun  (N.  Y.),  293;  Roberts  v.  Hilton  Ld. 
M.  Co.,  45  Wash.  464,  88  P.  946.  See  also  See.  622.  Ratification 
may  arise  from  long  acquiescence.  Kehler  v.  Kemble,  26  La. 
Ann.  713 ;  Hull  v.  Harper,  17  111.  82 ;  Williams  v.  Merritt,  23  111. 
623.  From  the  bringing  of  a  suit  by  the  principal  to  acquire 
the  benefit  of  the  acts  of  the  alleged  agent.  Bank  of  Beloit  v. 
Beale.  34  N.  Y.  473;  Carsee  v.  Paul,  41  N.  H.  24;  Walker  v. 
Mobile,  etc.,  F.  Co.,  34  Miss.  245;  Folger  v.  Mitchell,  3  Pick. 
(Mass.)  396.  By  a  letter  from  the  principal  to  his  agent  author- 
izing certain  acts,  although  received  after  their  performance. 
Bice  V.  McLaren,  42  ]\Ie.  157. 

No  act  is  capable  of  ratification  unless  performed  by  the  agent 
in  behalf  of  his  principal.  Collins  v.  Snow,  7  Robt.  (N.  Y.) 
623 ;  Com.  Bank  v.  Jones,  18  Tex.  811 ;  Fellows  v.  Commission- 
ers, 36  Barb.  (N.  Y.)  655. 

The  policy  of  the  law  will  not  permit  a  principal  to  ratify 
an  unauthorized  act  in  part  and  repudiate  the  remainder;  it 
must  be  accepted  or  rejected  as  an  entirety.  Fisher  v.  Stevens, 
16  111.  397 ;  Henderson  v.  Cummings,  44  111.  325 ;  Wedner  v. 
Lane,  14  Mich.  124:  Elwell  v.  Chamberlain,  31  N.  Y.  611;  Cole- 
man V.  Stark,  1  Ore.  115;  Bishop  v.  Stewart,  13  Nev.  25;  Newell 
V.  Hurlbut,  2  Ver.  351 ;  Kyle  v.  Rippcij,  20  Oregon,  446,  26  P. 
308. 

A  principal  taking  possession,  knowing  of  a  mortgage  given 
by  the  agent  to  purchase  the  land  for  the  unpaid  purchase 
money,  and  a  note  executed  at  the  same  time  by  the  agent  for 
the  same  purpose,  ratified  his  acts.  Fouch  v.  Wilson,  59  Ind.  93. 

A  principal  will  not  be  held  to  have  ratified  unauthorized 
acts  of  his  agent  unless,  at  the  time,  he  was  fully  aware  of  all 
the  circumstances.  Owings  v.  Hall,  9  Peters  (U.  S.),  607; 
Fedrick  v.  Rice,  13  Iowa,  214,  Fletcher  v.  Dysart,  9  B.  Monroe 
(Ky.),  413;  Woodbury  v.  Lamed,  5  Minn.  339;  Pittsburg,  etc., 
R.  V.  Gazzan,  32  Pa.  St.  340;  Hardeman  v.  Ford,  12  Ga.  205; 
Dodge  v.  McDonnell,  14  Wis.  600;  Dickerson  v.  Conway,  12 
Allen  (Mass.),  487;  Seymour  v.  Wychoff,  10  N.  Y.  213;  Stein  v. 
Kendall,  1  Bradwell  (111.),  193;  Bosseau  v.  O'Brien,  4  Biss.  (U. 
S.)  39.3. 

Before  a  person  can  be  bound  by  the  ratification  of  the  pur- 


THE  CONTRACT  OP  AGENCY.  41 

chase  of  certain  real  estate  by  his  broker,  instead  of  a  particu- 
lar lot,  it  must  appear  that  he  was  informed  of  all  the  material 
facts  in  the  transaction.  Kerr  v.  Sharp,  83  111.  199;  Stein  v. 
Kendall,  1  111.  App.  103. 

Where  an  agent  for  the  sale  of  real  estate  executed  his  in- 
structions in  selling  a  part  of  the  property  in  regard  to  which 
he  was  authorized  only  to  negotiate  for  a  sale,  and  his  prin- 
cipal afterward  impliedly  ratified  all  his  acts  by  receiving  the 
money  for  the  sale  of  all  the  land,  but  it  appeared  that  he  did 
not  know  that  the  portion  unintended  had  been  sold.  Held, 
that  the  agreement  made  by  the  agent  was  neither  authorized 
nor  ratified.  Lester  v.  Kinne,  37  Conn.  9.  The  unauthorized 
deed  of  an  agent,  whore  still  required  to  be  sealed,  can  be  rati- 
fied only  by  an  instrument  under  seal.  Spofford  v.  Hohhs,  29 
Me.  148;  Drumriffht  v.  PhUpot,  16  Ga.  424;  Reese  v.  Medlock, 
27  Tex.  120.  Where  the  instrument  unauthorizedly  executed  by 
the  agent  did  not  require  a  seal,  a  written  ratification  without 
suffices.  Crazier  v.  Karr,  11  Texas,  376 ;  Adams  v.  Power,  52 
Miss.  828. 

In  those  States  which  do  not  require  the  authority  of  the  agent 
to  be  in  writing  the  principal  may  ratify  by  parol.  1  Parsons 
on  Con.  52;  Eammond  v.  Ilannin,  21  ]\Iich.  374.  And  in  States 
where  parol  ratification  prevails,  the  approval  of  the  principal 
may  be  inferred  from  acts.  Hammond  v.  Hannin,  21  Mich.  374. 
Where  a  written  contract  for  the  sale  of  lands  was  made  by 
one  to  whom  power  therefor  could  not  be  delegated,  such  act 
may  be  ratified  by  an  instrument  in  writing  to  satisfy  the  stat- 
ute of  frauds.    Newton  v.  Bronson,  13  N.  Y.  587. 

In  Pennsylvania  an  unauthorized  lease  of  land  by  an  agent 
for  a  longer  period  than  three  years  can  be  ratified  by  the  owner 
only  in  writing.  ^IcDowell  v.  Simpson,  3  Watts  (Pa.),  129. 
When  informed  of  the  unauthorized  acts  of  his  agent  the  prin- 
cipal must,  within  a  reasonable  time,  elect  to  approve  or  disap- 
prove; if  he  does  not  disaffirm  them  the  agent  may  presume 
that  his  conduct  has  been  approved;  silence  will  be  equivalent 
to  approval.  Meyer  v.  Morgan,  51  JMiss.  21 ;  Hawkins  v. 
Sanger,  22  Minn.  557. 

One  does  not  ratify  the  unauthorized  acts  of  others  in  exe- 
cuting a  contract  of  sale  of  his  lots  by  merelv  remaining  silent 


42  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

a  long  time,  he  not  having  known  of  the  facts  and  having  been 
misled  in  important  particulars  by  their  letter,  having  received 
no  benefits  under  the  contract,  and  his  silence  not  having  caused 
the  vendee  to  change  his  position  for  the  worse.  Colvin  v. 
Blanchard  (Tex.  Sup.  '07),  106  S.  W.  323;  affirming  103  S.  W. 
1118;  List  &  Son  Co.  v.  Chase,  80  0.  St.  42. 

A  valid,  binding  ratification,  when  made,  can  not  be  revoked, 
but  the  principal  must  abide  by  it,  whether  it  be  to  his  detri- 
ment or  to  his  advantage.  Watferson  v.  Fogers,  21  Kan.  529. 
In  the  absence  of  express  ratification  by  the  principal,  there 
must  be  an  appropriation  by  him  of  the  services  of  the  broker 
under  such  circumstances  as  would  render  the  withholding  of 
remuneration  therefor  inequitable.  Atwater  v.  Lockwood,  39 
Conn.  45;  Alhmni  Land  Co.  v.  Kickfl  162  Ind.  222,  70  N.  E. 
158,  Etthgcr  v.  Wmiherhend,  29  Ohio  Cir.  Ct.  R.  137. 

W,  the  president  of  the  defendant  company,  agreed  to  pay 
the  plaintiif  a  commission  for  procuring  a  purchaser  of  land 
which  they  thought  belonged  to  W,  but  which  belonged  to  the 
company,  plaintiff  procured  a  purchaser  and  W  sold  him  the 
land — the  company  laiew  nothing  of  the  contract  with  plaintiff, 
but  ratified  the  sale  and  made  a  deed  to  the  purchaser.  Held, 
that  plaintiff  could  not  recover  commissions  from  the  company. 
Copelaml  v.  Stoncham  Tannery  Co.,  142  Pa.  St.  446,  21  Atl.  825. 

A  contract  of  sale  of  realty  was  made  by  one  having  no  title 
nor  authority  to  execute  such  an  instrument;  the  attorney  for 
the  purchaser  was  informed  by  the  equitable  owner  that  such 
person  was  authorized  to  sell.  Held,  that  such  statement  was  a 
ratification  of  the  agent's  authority  which  estopped  the  equitable 
owner  from  denying  it.  Gregg  v.  Corey.  4  Cal.  App.  354.  88 
P.  282. 

"Where  an  agent  is  authorized  to  procure  a  purchaser  for  real 
estate  at  a  fixed  sum  and  for  a  stipulated  compensation,  he  can 
recover  the  compensation  when  he  procures  a  purchaser  to 
whom  the  owner  sells,  although  he  accepts  a  less  sum  than  that 
at  which  he  authorized  the  agent  to  sell.  Ice  v.  Maxwell,  61 
W.  Va.  9,  55  S.  E.  899;  Weeks  v.  Smith  (N.  J.  Sup.  10),  75 
A.  773. 

Where  the  defendant  put  real  estate  in  the  hands  of  the  plain- 
tiff to  sell,  directing  him  not  to  sell  it,  but,  nevertheless,  for- 


THE    CONTRACT    OF    AGENCY.  43 

getting  the  injunction  placed  upon  him  he  did  advertise  the 
property,  and  a  person  reading  the  same  went  directly  to  the 
defendant  who  sold  him  the  property,  this  was  a  ratification 
of  plaintiff's  departure  from  instructions,  and  the  defendant 
was  liable  to  the  plaintiff  for  commissions.  Maloon  v.  Barrett, 
192  Mass.  552,  78  X.  E.  560. 

Where  plaintiff,  having  obtained  from  the  defendant  a  state- 
ment as  to  the  price  and  terms  at  which  to  sell  certain  real 
estate,  found  a  person  able  and  willing  to  purchase  on  the 
terms  stated,  and  notified  the  defendant,  enclosing  a  deed  for 
execution,  which  defendant  executed  and  sent  to  one  R,  with  a 
letter  constituting  R,  his  agent,  to  deliver  the  deed  and  com- 
plete the  sale,  if  the  terms  were  the  best  obtainable,  defendant, 
through  the  said  agent  R.  refused  to  accept  such  terms  and  re- 
fused to  deliver  such  deed.  Held,  that  these  facts  amounted 
neither  to  an  acceptance  of  the  plaintiff's  proposal,  nor  to  a 
ratification  of  the  unauthorized  acts  of  plaintiff  in  negotiating 
with  a  third  person  for  the  purcha.se  of  the  property.  Harris 
v.  Reynolds  (North  Dak.  '07),  Supreme  Court.  114  N.  W.  369. 

If  a  broker  undertakes  to  modify  his  authority  the  principal 
may  repudiate  and  decline  to  be  bound  thereby,  or  he  may  ratify 
his  act  and  be  Ixiund  by  the  change.  Phinizij  v.  Bush.  129  Ga. 
479,  59  S.  *E.  259.  Tn  a  suit  for  commissions  for  finding  a 
purchaser  for  land  listed  with  brokers,  and  by  them  relisted 
with  plaintiff's  firm,  it  Avas  essentia]  to  authorize  a  recovery 
that  the  land  was  so  relisted  by  authority  from  defendant,  either 
express  or  implied,  unless  after  the  land  was  listed  with  the 
first  brokers,  they  so  relisted  it.  and,  defendant  being  aware 
of  it,  ratified  the  act.  Sterling  v.  DeLaune  (Tex.  Civ.  App.  '07), 
105  S.  W.  1169. 

Under  the  ^Missouri  statute  providing  that  no  contract  for  the 
sale  of  real  estate,  made  by  an  agent,  shall  be  binding  unless 
the  agent  be  authorized  in  writing  to  make  the  contract,  the 
ratification  of  the  contract  by  the  principal  for  the  sale  of  land 
by  the  agent  must  be  in  writing,  where  no  element  of  equitable 
estoppel  exi.sts.    Johnson  v.  FeeJd,  185  ^lo.  335,  83  S.  W.  1077. 

Where  a  third  party  con<lucted  negotiations,  procured  a  loan, 
and  drew  the  note  and  mortgage,'  on  which  suit  was  based,  for 
defendant,  though  not  authorized  directly  to  do  so  for  them,  and 


44  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

they  accepted  the  loan  and  executed  the  note  and  mortgage, 
they  thereby  ratified  the  acts  of  such  third  party  and  were  bound 
thereby  as  effectually  as  though  they  had  expressly  authorized 
him  to  act  as  their  agent.  Marks  v.  Taylor,  23  Utah,  470,  63 
P.  897,  65  P.  203. 

"Where  the  contract  of  a,  sub-agent  is  ratified  by  the  owner, 
in  case  of  a  sale  the  sub-agent  may  sue  the  owner  for  the  com- 
mission, and  is  not  limited  to  his  action  against  the  broker  em- 
ploying him.  Warren  Com.  &  Inv.  Co.  v.  Hull  R.  E.  Co.,  120 
Mo.  App.  432,  96  S.  W.  1038;  Mechem  on  Agency  Sees.  197, 
227. 

Where  the  owner  at  first  refuses  an  offer  as  too  low,  and  dis- 
charges the  broker,  and  thereafter,  through  another  broker,  ac- 
cepts, he  is  liable  to  the  first  broker  for  commissions,  the  sale 
having  been  made  to  his  customer  at  the  price  originally  offered. 
Gottschalk  v.  Jennings,  1  La.  -Ann.  5 ;  Cadigan  v.  Crahtree,  179 
Mass.  474,  61  N.  E.  37,  55  L.  R.  A.  77 ;  Buehler  v.  Weiffenhach, 
46  N.  Y.  S.  861,  21  Misc.  30 ;  PecMam  v.  Ashhurst,  18  R.  I.  376, 
28  A.  337. 

Where  a  broker  sent  a  customer  to  his  principal,  and  the  cus- 
tomer told  him  that  the  broker  had  shown  him  the  land,  this 
was  held  sufficient  to  bind  and  obligate  the  principal  to  pay 
the  broker  for  the  services  he  rendered  in  procuring  the  pur- 
chaser. Reislius- Reiner  Land  Co.  v.  Benner,  91  Minn.  401,  98 
N.  W.  186. 

A  co-agent,  under  a  power  to  sell,  is  not  bound  by  an  unau- 
thorized option,  not  given  or  ratified  by  himself,  and  if  he  pur- 
chases the  land  for  himself,  can  not  be  held  as  a  trustee  for  the 
claimant  under  the  option.  Tihhs  v.  Zirkle,  55  W.  Va.  49.  46 
S.  E.  701,  104  Am.  St.  R.  977.  An  owner  who  has  sanctioned 
sales  by  accepting  the  proceeds  can  not  contend  that  the  power 
of  attorney  did  not  authorize  the  sales.  Vaughn  v.  Sheridan, 
50  Mich.  155.  A  principal  appropriating  the  benefits  of  an 
unauthorized  act  of  a  broker  becomes  liable  by  the  ratification 
to  compensate  him  for  his  services.  Merrill  v.  Latham,  8  Colo. 
App.  263,  45  P.  524;  Downing  v.  Buck,  135  Mich.  636,  98  N. 
W.  388;  Dayton  v.  Am.  Steel  Barge  Co.,  73  N.  Y.  S.  316,  36 
Misc.  223. 

A  real  estate  agent  inquired  of  an  owner  whether  he  would 


THE  CONTRACT  OF  AGENCY.  45 

sell  real  estate  for  $6,500  cash,  clear  of  special  taxes.  The  owner 
replied  that  he  would  sell  for  that  sum,  net.  The  agent  con- 
tracted with  a  purchaser  for  a  sale  at  $7,000,  payable  on  de- 
livery of  a  warranty  deed  and  abstract,  all  assessments  to  be 
paid,  and  notified  the  owner  of  the  sale  and  requested  an  ab- 
stract. The  owner  sent  an  abstract,  and  stated  that  it  was  his 
understanding  that  the  price  was  $6,500  net,  and  that  he  would 
pay  no  back  taxes  or  any  other  expenses.  Held,  that  the  eon- 
tract  was  not  enforceable  against  the  owner,  since  he  neither 
authorized  the  agent  to  make  it.  nor  ratified  it.  Hutchins  v. 
Wertheimer,  51  Wash.  539,  99  P.  577.  See  references  under 
Sec.  307. 


CHAPTER  V. 

SECTION.  SKCTION. 

25.  Privity.  28.     Assignees    and    assignments. 

26.  Tlie  power  of  attorney,  its  ex-       29.     Attorneys  at  Law. 

tent  and   limitations.  30.     Auctions  and  Auctioneers. 

27.  The  attorney  in  fact. 

Sec.  25.    Privity. 

In  the  absence  of  contractual  relations,  a  sub-agent  is  not  en- 
titled to  recover  from  the  owner  for  want  of  privity.  J.  B. 
Watkins  Ld.  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App.  '06),  96 
S.  W.  72;  Sterling  v.  DcIahdw  (Tex.  Civ.  App.  '07),  105  S.  W. 
1169.  See  also  Sec.  393.  Fanney  v.  Donovan,  78  Mich.  318,  44 
N.  W.  276;  Mechem  on  Ag.  Sees.  197,  227;  Mueller  v.  Bell  (Tex. 
Civ.  App.   '09),  117  S.  W.  993. 

Fraudulent  representations  made  to  the  principal  by  third 
parties  in  privity  with  the  broker,  defeat  his  right  to  commis- 
sions. Midlcn  V.  Boiver,  22  Ind.  App.  294,  53  N.  E.  790.  See 
also  Sees.  390,  391.  If  A  is  employed  as  a  broker  to  sell  B's 
house,  on  an  agreement  that  he  will  inform  B,  if  he  sends  a 
purchaser,  and  A  and  C  then  agree  that  if  C  will  procure  a 
purchaser,  he  shall  share  with  A  in  the  commission,  and  C,  in 
going  to  look  at  the  house,  tells  B  that  no  broker  has  anything 
to  do  with  the  trade,  and  a  price  is  named  on  that  understand- 
ing, and  the  house  is  bought  by  a  purchaser  procured  by  C,  A 
and  C  are  partners  in  the  business  of  effecting  a  sale  of  B's 
house  to  such  purchaser,  and  C's  fraud,  though  not  partici- 
pated in  by  A,  will  bar  an  action  by  A  against  B  for  the  com- 
mission, prosecuted  for  the  joint  benefit  and  at  the  joint  ex- 
pense of  A  and  C.  Thwinq  v.  Clifford,  136  Mass.  482;  TTaven 
V.  Tartar,  124  :\ro.  App.  691,  102  S.  W.  21. 

A  broker  employed  to  sell  real  estate  is  unable,  for  want  of 
privity,  to  enforce  a  stipulation  in  the  contract  of  sale  be- 
tween vendor  and  vendee  by  which  the  latter  agrees  to  pay  the 
46 


THE  CONTRACT  OF  AGENCY.  47 

commission.  Bah  v.  Hirschbein,  11  N.  Y.  S.  776 ;  Gridley  v. 
Bayless,  43  111.  App.  503;  Lawyer  v.  Post,  109  Fed.  Rep.  512, 
47  C.  C.  A.  491;  Davenport  v.  Ask,  121  La.  209,  46  S.  213; 
Le  Master  v.  Dotham  Real  Est.  Ag.  (T.  C.  A.  '09),  121  S.  W. 
185.  See  also  Sec.  662.  For  the  same  reason,  a  purchaser  can 
not,  in  an  action  ex  contractu,  recover  from  the  agent  of  the 
seller  the  excess  paid  to  the  agent  beyond  the  price  demanded 
by  the  seller.  Lazarus  v.  Sancls,  27  N.  Y.  S.  885,  7  Misc.  R.  282, 
33  N.  Y.  S.  855,  12  Misc.  R.  575. 

Where  an  agent  to  sell  property  sells  to  a  firm  of  which  he 
is  a  member^  without  the  knowledge  of  the  principal  that  he  is 
interested  in  the  purchase,  the  partners  of  the  agent  can  not 
recover  damages  of  the  principal  on  account  of  misrepresenta- 
tions made  by  the  agent,  they  being  parties  to  his  violation  of 
his  trust.  Pineville  v.  II oiling s^vorih,  21  Ky.  L.  R.  899,  53 
S.  W.  279. 

Purchasers  of  land  were  under  no  legal  obligation  to  the 
owner's  broker,  and  could  so  arrange  the  purchase  as  to  permit 
another  broker  to  procure  the  commission,  though  the  owner's 
broker  drew  their  attention  to  the  property,  and  he  has  no 
cause  of  action  against  the  other  broker,  his  remedy  being  against 
his  principal,  if  he  was  the  procuring  cause  of  the  sale.  Op- 
penheimer  v.  Barneft,  116  N.  Y.  S.  44. 

Sec.  26.     The  power  of  attorney,  its  extent  ajid  its  limitations. 

A  power  of  attorney  to  buy  and  sell  real  estate,  etc.,  does 
not  authorize  a  sale  of  land  acquired  by  the  grantor  before  he 
executed  such  power.     Greve  v.  Co/fin,  14  Minn.  345. 

In  one  case  it  was  held  that  the  word  "sell,"  in  a  power  of 
attorney  authorizing  a  party  to  sell  or  lease  any  and  all  real 
estate,  etc.,  gives  ample  power  to  complete  a  sale  by  making 
a  deed  of  conveyance  to  the  purchaser.  Hemstreet  v.  Burdick, 
"  90  111.  444.  Compare  Bacon  v.  Davis  (Cal.  App.  '08),  98  P.  71. 
Where  the  power  granted  to  the  agent  is  special,  if,  in  an  at- 
tempt to  bind  his  principal,  he  varies  from  it,  his  act  is  void. 
Mitchell  v.  Sproul,  5  J.  J.  ^larsh  (Ky.),  264.  An  agent  em- 
ployed to  collect  rents  is  without  authority  to  employ  an  en- 
gineer. Crazier  v.  Reins,  4  111.  App.  564.  A  power  of  attorney 
confirming  all  sales  and  leases  confers  power  to  sell  land.    Sulli- 


48  AMERICAN    uAW    REAL   ESTATE   AGENCY. 

van  V,  Davis,  4  Cal.  291,  A  power  of  attorney  to  sell  one-half 
of  a  tract  of  land  imposes  discretion  to  determine  which  half. 
Alemnny  v.  Daly,  36  Cal.  90. 

A  power  of  attorney  to  sell  any  or  all  of  constituent's  real 
estate,  authorizes  the  sale  of  that  acquired  subsequently.  Faj/ 
V.  Winchester,  4  j\Ietc.  (Mass.)  513;  Burkey  v.  Judd,  22  Minn. 
287.  A  power  to  sell  all  land  principal  has  not  previously  con- 
veyed authorizes  the  sale  of  that  which  had  been  sold  but  not 
conveyed.    Mitchell  v.  Moupin,  3  T.  B.  Mon.  (Ky.),  185.  . 

A  power  authorizing  an  agent  *'to  grant,  bargain  and  sell'* 
certain  lands,  or  any  part  or  parcel  thereof,  authorizes  the  agent 
to  sell  on  reasonable  credit,  to  receive, payment,  and  a  payment 
to  him  was  a  payment  to  the  principal,  and,  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal,  he  might 
include  other  valuable  considerations  besides  money,  and  might 
sell  an  undivided  interest  in  the  property.  Carson  v.  Smith,  5 
Minn.   78. 

In  Illinois,  a  power  of  attorney  not  under  seal  will  authorize 
the  attorney  to  sell  land,  if  it  so  provides,  but  not  to  convey 
it.  Watso7i  V.  Sherman,  84  111.  263,  267.  A  power  to  sell 
land  for  the  purpose  of  settlement  is  not  invalidated  if  it  after- 
ward appear  that  the  land  was  bought  on  speculation,  and  there 
was  no  fraud  practiced  by  the  i)iirchasers.  Spofford  v.  Hohhs, 
29  Me.  148.  A  power  of  attorney  to  secure  the  right  and  title 
of  the  principal  to  certain  lands,  to  employ  lawyers,  etc.,  does 
not  confer  authority  to  convey  half  the  land  to  the  lawyers  for 
their  services  and  for  their  agreeing  to  provide  for  the  expense 
of  a  suit  to  confirm  the  title  and  in  case  of  success  to  pay  the 
attorneys  a  certain  sum  in  addition.  Blum  v.  Robertson,  24  Cal. 
128. 

A  power  of  attorney  to  sell  land  does  not  include  power  to 
lease  or  exchange  it.  Trudo  v.  Anderson,  10  Mich.  357 ;  Lamp- 
kin  V.  Wilson,  5  Heisk.  (Tenn.)  555;  Beese  v.  Medlock,  27  Texas,  • 
120.  Nor  does  a  power  to  sell  land  include  power  to  mortgage 
it.  Stronghill  v.  Anstey.  1  De  Gex,  M.  &  G.  (Eng.)  635;  Payn 
V.  Cooper,  16  Beaven  (Eng.),  396;  Halderhy  v.  Spofford,  1 
Beavan  (Eng.),  390;  Jeffray  v.  Hurst,  49  Mich.  31;  Contant  v. 
Servoss,  3  Barb.  (N.  Y.)  128;  Russell  v.  Russell,  36  N.  Y.  581; 


THE  CONTRACT  OF  AGENCY.  49 

Bloomer  v.  Waldron,  3  Hill  (N.  Y.),  361;  Taylor  v.  Gallowa/y, 
1  Ohio,  232. 

A  power  to  do  all  things  concerning  "my  real  and  personal 
estate"  gives  power  to  make  leases,  with  privilege  of  purchase. 
De  Rutte  v.  Middrew,  16  Cal.  505.  A  power  to  sell  in  lots  does 
not  sustain  the  sale  of  a  portion  of  the  land,  and  a  conveyance 
thereof  was  held  invalid.  Rice  v.  Tavcrnier,  8  Minn.  248.  Under 
a  general  power  to  sell  property  the  agent  may  bind  by  a  con- 
tract of  sale.  Haydock  v.  Steive,  40  N.  Y.  363.  A  deed  executed 
under  a  defective  power  of  attorney  will  be  treated  as  a  con- 
tract of  sale.  Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963. 
A  purchaser  of  real  estate  from  an  agent  is  bound  to  ascertain 
the  limits  of  his  power  to  bind  his  principal.  Milne  v.  Kleh, 
14  A.  646,  810,  44  N.  J.  Eq.  378.  See  also  Sec.  18.  Where  the 
instrument  to  be  executed  requires  two  witnesses,  the  power 
must  have  that  number  also.     Gage  v.  Gage,  30  N.  H.  420. 

A  power  to  purchase  with  particular  funds  invests  the  agent 
with  no  authority  to  mortgage  the  property  to  secure  the  pur- 
chase money,  and  such  instrument  will  not  bind  the  property. 
Fraser  v.  McPherson,  3  Desau.  (S.  C.)  393.  "Where  one  has 
made  conveyances  under  a  power  of  attorney,  and  the  owner 
has  sanctioned  the  sales  by  accepting  the  proceds  she  can  not 
contend  that  the  power  did  not  authorize  sales.  Vaughn  v. 
Sheridan,  50  jMich,  155.  A  power  of  attorney  to  sell  real  es- 
tate, without  restriction,  authorizes  a  sale  with  covenants  of 
general  warrantv.  Lc  Roy  v.  Beard,  8  How.  (U.  S.)  451;  Peters 
V.  Farnsworth,  15  Vt.  155;  Venada  v.  Hopkins,  1  J.  J.  Marsh. 
{Ky.),  285.  293;  Taggart  v.  Stanherrv,  2  McLean  (IT.  S.),  543. 
(See  Sec.  418  for  cases  sur^portinor  the  contrary  doctrine.) 

A  power  of  attorney  to  sell  real  estate  may  limit  the  time 
within  which  to  perform  the  act;  where  it  fixes  a  reasonable 
time  for  doing  the  act,  it  must  be  done  by  the  attorney  within 
a  reasonable  time  in  order  to  bind  the  principal,  and  a  pro- 
pasal  of  sale  made  under  such  a  power  must  be  accepted  within 
a  reasonable  time  from  the  date  of  the  power.  Dyer  v.  Duffy, 
39  W.  Va.  148,  19  S.  E.  540,  24  L.  K.  A.  339. 

Where  a  broker's  power  contained  no  power  of  substitution 
he  could  not  delegate  his  agency  to  another;  hence,  a  contract 
of  sale  having  been  made  by  a  sub-agent  it  was  proper  for  the 


50  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

broker  to  obtain  a  re-execution  thereof.  Kilpatrick  v.  Wiley, 
197  Mo.  123,  95  S.  W.  213.  A  power  to  sell  is  not  violated  by 
a  contract  containing  provisions  not  in  it  making  time  of  the 
essence  of  the  contract.    Id. 

Plaintiff  was  appointed  defendant's  agent  to  sell  certain  land, 
and  he  sued  for  damages,  in  lieu  of  commissions,  alleging  that 
the  completion  of  the  sale  was  prevented  by  defendant's  failure 
to  have  the  land  surveyed  and  refusal  to  extend  the  agency,  the 
agent  made  a  verbal  sale,  not  binding  on  the  purchaser  on  con- 
dition that  the  tract  on  survey  should  contain  a  certain  number 
of  acres.  Held,  that  the  defendant's  failure  to  have  the  land 
surveyed  did  not  excuse  plaintiff's  failure  to  make  a  binding 
sale,  and  did  not  entitle  him  to  damages  when  his  authority  to 
sell  expressly  empowered  him  to  have  the  land  surveyed  at  the 
owner's  expense.     Smith  v.  Tate,  82  Va.  657. 

Where  authority  is  given  to  'two  or  more  jointly  to  do  an  act, 
all  must  concur  in  doing  it.  Hartford  Fire  Ins.  Co.  v.  Wilcox, 
57  111.  180. 

An  agent  making  a  contract  without  authority  or  in  excess 
thereof,  binds  himself.     See  Sec.  307b. 

Sec.  27.     The  Attorney  in  fact. 

An  attorney  in  fact  is  one  who  has  authority  given  hira  to 
act  in  the  place  and  stead  of  him  by  whom  he  is  delegated. 
Bacon's  Abr.  All  persons  who  are  capable  of  acting  for  them- 
selves, and  even  these  who  are  disqualified  from  acting  in  their 
own  capacity,  if  they  have  sufificient  understanding,  as  infants 
of  a  proper  age,  and  femes  covert,  may  act  as  attorneys  for 
others.     Bouvier's  Law  Die. 

Where  two  persons  are  appointed  with  equal  authority  to 
act  for  a  principal,  the  right  is  not  exclusive  in  either,  but  any 
act  done  by  either,  within  the  scope  of  his  authority,  will  con- 
clude the  other.  Cuskman  v.  Glover,  11  111.  600;  Glenn  v.  David- 
son, 37  Md.  365. 

Sec.  28.     Assignees  ajid  assignments. 

A  broker  who  is  the  owner  of  an  entire  demand  for  commis- 
sions may  assign  an  item  of  it,  though  he  recovers  on  the  re- 
mainder, his  recovery  will  not  bar  the  assignee  from  recovering 


THE  CONTRACT  OF  AGENCY.  51 

on  the  item  assigned  to  him,  though  the  demand  is  not  legiti- 
mately the  subject  of  distinct  action  and  might  have  been  in- 
cluded in  the  original  action.  Goldshear  v.  Barron,  85  N.  Y.  S. 
395,  42  Misc.  198. 

The  contract  of  a  firm  to  act  as  real  estate  agents  for  a  corpora- 
tion was  assigned  to  one  member  of  the  firm,  who  proceeded 
with  the  business,  selling  the  lots  and  rendering  monthly  re- 
ports in  his  own  name;  the  corporation  accepted  the  reports 
and  proceeds  of  the  sales,  and  executed  checks  and  other  papers 
to  the  assignee  in  his  own  name.  Held,  a  ratification  of  the 
assignment.  Alhnmj  Land  Co.  v.  Rickel,  162  Ind.  222,  70  N.  E. 
158. 

Where  M,  having  the  sale  of  land  turned  it  over  to  L,  agreeing 
that  L  should  be  paid  the  commission,  to  which  the  owner  con- 
sented, L  was  entitled  to  claim  commissions  directly,  and  not 
as  assignee  of  M.  Munson  v.  Mahon,  135  Iowa,  335,  112  N.  W. 
775. 

If  a  broker  having  charge  of  the  property  of  a  syndicate, 
makes  a  contract  of  sale  of  lots  to  a  nominal  purchaser  to  show 
business,  and  such  purchaser  assigns  to  a  bona  fide  purchaser, 
who  completes  the  sale,  the  statute  of  limitations  will  run  against 
the  broker's  claim  for  commissions  as  of  the  date  of  the  hona 
fide  sale  and  not  of  the  nominal  one.  Eoss  v.  Fickling,  11  App. 
D.  C.  442.  Where  a  broker  employed  to  sell  a  contract  of  sale 
cf  real  estate  at  a  profit  succeeded,  and  the  owners  of  said  con- 
tract refused  to  assign  the  same,  the  broker  was  entitled  to  com- 
missions.   Levy  V.  Trimble,  94  N.  Y.  S.  3,  47  Misc.  Kep.  394. 

Sec.  29.    Attorneys  at  law. 

An  attorney  can  not  recover  full  commissions  for  purchasing 
property  for  another,  and  in  addition  recover  an  attorney's  fee 
for  defending  a  suit  involving  the  right  of  the  vendor  to  re- 
pudiate a  sale  previously  made  to  others,  as  it  devolved  on  the 
attorney  to  defeat  such  suit  in  order  to  earn  his  commissions, 
he  having  advised  the  purchasers  that  the  vendor  could  sell. 
Schomberg  v.  Anxier,  101  Ky.  292,  40  S.  W.  911,  19  Ky.  L.  R. 
548.  ^Tiere  a  client  conveyed  to  an  attorney  an  interest  in 
real  estate  as  compensation  for  securing  a  loan  for  him,  instead 


52  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

of  a  cash  fee,  the  attorney  acquired  an  equitable  lien  thereon. 
Goad  V.  Hart,  128  Cal.  197,  60  P.  761,  964. 

'An  attorney  was  employed  to  sell  real  estate;  the  purchaser 
he  secured  was  one  of  his  clients,  and  was  also  president  of 
a  corporation  of  which  the  attorney  was  a  director,  and  the  con- 
tract of  purchase  was  made  for  the  benefit  of  the  said  corpora- 
tion, the  property  being  conveyed  to  it.  Held,  that  the  attorney 
sustained  a  relation  of  trust  to  both  his  client  and  the  corpora- 
tion, and  could  not  recover  commissions  on  such  sale  without 
proof  that  the  purchaser  had  knowledge  of  and  consented  to 
his  contract  for  commissions,  Nekarda  v.  Presherger,  107  N.  Y. 
S.  897,  123  App.  Div.  418.  Authority  to  agents  to  employ  at- 
torneys to  secure  the  right  and  title  of  the  principal  to  certain 
lands,  did  not  authorize  them  to  convey  half  the  land  to  the  attor- 
neys for  the  services  to  be  performed  by  them.  Blum  v.  Bohert- 
son,  24  Cal.  128.  .  '      . 

Sec.  30.    Auctions  and  auctioneers. 

A  contract  giving  an  agent  the  ex-clusive  right  to  find  a  pur- 
chaser for  a  farm  within  a  given  time  is  not  breached  by  a  sale 
by  the  owner  at  public  auction,  through  the  medium  of  an  auc- 
tioneer acting  under  his  immediate  direction.  Ingold  v. 
Symonds,  134  Iowa,  206,  111  N.  W.  802.  A  memorandum 
signed  by  an  auctioneer  selling  real  estate  describing  the  land 
sold  and  stating  the  terms  of  the  sale,  binds  both  buyer  and 
seller,  and  is  a  compliance  with  the  statute  of  frauds.  Garth 
V.  Davis,  27  Ky.  L.  R.  505,  85  S.  W.  692. 

Plaintiff  was  employed  by  defendant  to  advertise  his  prop- 
erty for  sale  at  auction,  to  secure  an  auctioneer  and  to  take 
charge  of  the  sale;  after  plaintiff  had  advertised  the  property 
and  secured  an  auctioneer,  but  before  the  day  of  sale,  defend- 
ant sold  the  property  privately,  and  thereupon  agreed  with 
plaintiff  to  pay  him  two  per  cent,  of  the  price  for  what  he  had 
done.  Held,  that  this  agreement  was  not  within  the  statutory 
requirement  of  a  writing  to  entitle  the  broker  to  commissions. 
Griffith  V.  Daly,  56  N.  J.  Law  (27  Vroom),  466,  29  A.  169. 


CHAPTER  VI. 

SECTION.  SECTION. 

31.  Architects.  35.  Trusts  and  trustees. 

32.  Abstracts  of  title.  36.  Principal  and  agent. 

33.  Meeting  of  minds.  37.  Partnership. 

34.  Executors  and   administrators. 

Sec.  31.     Architects. 

In  an  action  by  an  architect  for  compensation  for  procuring 
capitalists  ready  and  willing  to  undertake  the  construction  of 
a  hotel,  it  was  alleged  that  his  right  to  compensation  depended 
on  his  procuring  satisfactory  arrangements  for  the  erection  of 
a  hotel  on  the  land  then  owned  by  the  defendant,  that  he  pro- 
cured the  necessary  capital  to  construct  the  hotel  on  terms 
agreeable  to  defendant,  on  such  premises  and  on  premises  sub- 
sequently purchased  by  defendant.  Held,  that  complaint  al- 
leged performance  by  the  architect  of  his  contract  of  employ- 
ment and  stated  a  cause  of  action.  Lucas  v.  Smith,  98  N.  Y. 
S.  1037,  113  App.  Div.  31. 

Sec.  32.    Abstracts  of  title. 

A  real  estate  broker  employed  to  sell  land  inquired  whether 
his  principal  had  an  abstract  of  title,  and  was  told  by  her  that 
she  saw  no  necessity  for  sending  an  abstract  until  a  sale  was 
made;  on  his  securing  a  prospective  purchaser  and  requesting 
that  an  abstract  be  sent,  the  owner  forwarded  an  entire,  com- 
plete abstract,  which  the  broker  procured  to  be  extended  to 
date ;  the  sale  was  not  consummated.  Held,  that  the  broker  was 
not  entitled  to  recover  for  his  outlay  in  perfecting  the  ab- 
stract. Parks  V.  Hogle,  124  Iowa,  98,  99  N.  W.  185.  A  pur- 
chaser for  a  tract  of  land  has  no  right  to  impose  upon  the 
owner  the  obligation  to  furnish  an  abstract  of  title  v/hen  not 
authorized  by  the  contract.  Hunt  v.  Tuttle,  133  Iowa,  647,  110 
N.  W.  1026. 

68 


54  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Where  an  exchange  of  properties  was  defeated  through  in- 
sistence that  the  purchaser  should  furnish  an  abstract  of  title 
no  commission  was  earned  by  the  broker.  Marple  v.  Ives,  111 
Iowa,  602,  82  N.  W.  1017. 

Sec.  33.    Meeting  of  minds. 

Where  a  prospective  purchaser  insisted  upon  a  warranty 
deed  and  the  owner  would  only  quit-claim  as  to  that  part  of 
the  conveyance  which  covered  what  was  formerly  a  street,  there 
was  no  meeting  of.  minds,  and  the  broker  was  not  entitled  to 
commissions.  Hess  v.  Block,  107  N.  Y.  S.  86,  56  Misc.  Rep. 
480. 

A  broker  can  not  recover  commissions  for  finding  a  purchaser 
unless  he  brings  the  minds  of  the  owner  and  the  prospective 
purchaser  to  an  agreement  upon  a  sale,  price  and  terms  thereof, 
and  all  the  details  incident  tor  a  sale.  Pearce  v.  Ross,  108  N. 
Y.  S.  48,  123  App.  Div.  611;  Cole  v.  Kosch,  102  X.  Y.  S.  14, 
116  App.  Div.  715.  See  also  Sees.  73,  541,  Hutter  v.  Kukner, 
121  N.  Y.  S.  210.  The  same  requirement  applies  in  the  case 
of  a  lease.  Tanenhmim  v.  Boekm,  111  N.  Y.  S.  185,  126  App. 
Div.  731.  Where  a  broker  produced  a  purchaser  who  refused  to 
execute  a  contract,  there  was  no  meeting  of  minds  and  the  broker 
was  not  entitled  to  commissions.  Bekrmann  v.  Marcus,  107  N.  Y. 
S.  12.  See  also  Sec.  73.  A  broker  can  not  recover  commissions 
^^nless  the  principal  and  the  person  procured  came  to  an  agree- 
ment on  the  terms  of  the  transaction,  although  the  terms  may 
be  vague.  Folinshee  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293; 
Drake  v.  Biddinger,  30  Ind.  App.  357,  66  N.  "R.  56;  Garcelon 
v.  Tihhetts,  84  Me.  148,  24  A.  797;  Bunyan  v.  Wilkinson,  57 
N.  J.  Law,  420,  31  A.  390;  Montgomery  v.  Knickerbocker,  50 
N.  Y.  S.  128,  27  App.  Div.  117;  Gutkman  v.  Meyer,  63  N.  Y. 
S.  971,  31  Misc.  810;  Bokner  v.  Lenisk,  60  N.  Y.  S.  543,  29 
Misc.  315;  Laffler  v.  Friedman,  57  N.  Y.  S.  281,  26  Misc.  750; 
Kiam  v.  Turner,  21  Tex.  Civ.  App.  417,  52  S.  W.  1043;  Hand 
V.  Conger,  71  Wis.  292,  37  N.  W.  235;  Barnard  v.  Monarch,  33 
How.  Pr.  (N.  Y.)  440,  1  Abb.  Dec.  108,  3  Keyes,  203;  Gardner 
v.  Pierce,  116  N.  Y.  S.  155;  W.  P.  Bae  Co.  v.  Kane,  116  N.  Y. 
S.  729.    See  also  Sees.  73,  541. 

The  phrase  "bringing  the  seller  and  purchaser  together,"  in 


THE  CONTRACT  OF  AGENCY.  55 

order  to  entitle  a  real  estate  broker  to  his  commissions,  does 
not  necessarily  mean  that  he  must  introduce  them  to  each  other, 
but  that,  if  his  efforts  result  in  bringing  the  minds  of  the  two 
to  an  agreement  resulting  in  the  sale  and  purchase  of  the  land, 
then,  within  the  meaning  of  the  law,  he  has  brought  them  to- 
gether.   Lewis  V.  McDonald,  83  Neb.  694,  120  N.  W.  207. 

Sec.  34.    Executors  and  administrators. 

An  admission  by  an  executor,  in  an  action  for  commissions 
for  procuring  a  purchaser  of  testator's  land,  that  he  was  the 
executor  and  trustee  under  a  will  is  not  sufficient  to  show  that 
he  was  authorized  to  sell  the  land.  Guthman  v.  Meyer,  63  N. 
Y.  S.  971,  31  Misc.  810.  An  agreement  to  buy  land,  entered 
into  by  one  of  two  executors  for  himself  and  his  co-executor, 
is  not  binding,  since  the  power  of  an  executor  can  not  be  dele- 
gated.    Wilson  V.  Mason,  158  111.  304,  42  N.  E.  134. 

A  promise  made  by  an  administrator  to  a  broker  to  compensate 
him  for  selling  land,  followed  by  a  sale  to  a  customer  introduced 
by  the  broker,  is  a  personal  contract  disconnected  from  the 
ownership  of  the  land  sold.  Moore  v.  Daiher,  92  Mich.  402,  52 
N.  W.  742;  Hickman-Coleman  Co.  v.  Leggett  (Cal.  App.  '09), 
100  P.  1072. 

.  "Where  the  owner  of  an  interest  in  a  mine  agreed  to  pay  an 
agent  a  certain  commission  for  selling  the  same,  and  a  pros- 
pective purchaser  was  secured  who  took  an  option  on  the  in- 
terest for  a  fixed  period,  the  owner  depositing  a  deed  in  escrow; 
before  the  expiration  of  the  option  the  owner  died  and  the  deed, 
on  the  failure  of  the  party  to  exercise  his  option,  was  returned 
to  the  administrator;  subsequently  the  party  who  had  held  the 
option  purchased  the  interest  from  the  administrator  for  the 
price  previously  agreed  upon.  Held,  that  the  administrator 
was  not  liable  for  the  commission  agreed  upon  in  the  contract 
made  with  the  decedent.  Trickey  v.  Crowe,  8  Ariz.  176,  71  P. 
965 ;  affirmed  204,  U.  S.  228 ;  Crow  v.  Harmon,  204  U.  S.  241 ; 
affirming  Harmon  v.  Crowe,  71  P.  1125;  Enyeart  v.  Figard,  38 
Pa.  Super.  Ct.  488. 

Where  an  administrator  authorized  a  broker  to  sell  decedent's 
land,  and  he  received  the  required  deposit  subject  to  return  if 
the  sale  was  not  completed,  the  relation  of  principal  and  agent 


56  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

was  established  between  the  parties  and  not  that  of  vendor  and 
purchaser,  and  therefore  the  purchaser  could  recover  the  de- 
posit from  the  administrator,  on  a  breach  of  the  specified  con- 
ditions, and  was  not  required  to  sue  the  broker.  Melone  v.  Ruf- 
fino,  129  Cal.  514,  62  P.  93,  79  Am.  St.  R.  127. 

Where  a  broker  agreed  with  an  owner  of  land  to  sell  it,  and 
that  all  above  a  certain  price  should  be  divided  between  them, 
and  advised  her,  after  a  certain  time,  to  sell  below  the  price 
named,  on  the  ground  that  the  land  was  not  worth  more,  and 
effected  a  sale  after  the  death  of  the  owner,  for  her  executor, 
at  a  price  which  left  nothing  to  be  divided  under  his  agree- 
ment with  the  decedent,  a  claim  against  the  executor  for  com- 
missions could  not  be  allowed.  In  re  French's  Est.,  101  N.  Y. 
S.  734,  51  Misc.  R.  457. 

Under  a  statute  requiring  that  an  agreement  authorizing  an 
agent  to  sell  real  estate  for  a  commission  must  be  in  writing, 
a  real  estate  agent  can  not  recover  from  executors,  as  individuals, 
commissions  for  selling  property,  when  the  contract  produced 
consists  of  letters  from  one  of  the  executors  only,  which  show 
that  he  was  acting  as  executor  and  not  individually.  Perkins 
v.  Cooper  (Cal.  Supreme  '90),  24  P.  377. 

Where  the  will  gave  the  executor  power  to  sell  land,  and  the 
executor  entered  into  a  contract  authorizing  an  agent  to  sell  a 
portion  of  the  land,  promising  him  commissions  therefor,  and 
the  agent  secured  a  purchaser  to  whom  a  conveyance  was  exe- 
cuted, the  agent  can  maintain  an  action  against  the  executor  as 
such  for  his  services.  Ingham  v.  Ryan  (Cal.  App.  '03),  71 
P.  899. 

Where  legacies  are  charged  on  real  estate  and  the  necessity 
for  a  sale  of  the  land  is  clear,  commissions  of  a  broker  upon 
such  sales  should  be  allowed  as  a  necessary  expense  of  admin- 
istration, on  appraisal  of  the  estate  for  the  transfer  tax.  In  re 
'Rothschild's  Estate.  118  N.  Y.  S.  654,  63  Misc.  Rep.  615. 

Sec.  35.     Trusts  and  Trustees. 

Defendant  brokers,  being  authorized  by  plaintiff  to  sell  land 
for  $2,300,  intrusted  the  matter  to  G,  an  employe,  who  per- 
suaded one  S  to  take  the  land  for  $2,300,  promising  that  de- 
fendants would  raise  the  money  for  him;  defendants  failed  to 


THE  CONTRACT  OF  AGENCY.  57 

raise  the  money,  whereupon  S  begged  G  to  find  some  one  to 
take  the  contract  off  his  hands  and  save  him  the  $100  paid  to 
plaintiff;  defendants  having  then  disposed  of  part  of  the  land 
for  $600,  H,  another  employe  of  defendants,  with  knowledge 
of  the  facts,  agreed  to  take  over  the  contract,  S  to  take  another 
part  of  the  land  for  $600,  counting  in  his  $100  paid;  these  two 
sales  for  $600  each  amounted  to  half  of  the  land;  plaintiff  not 
knowing  that  H  was  an  employe  of  defendants  gave  him  a  deed 
and  received  from  him  $2,300,  less  $200  commissions  paid  to 
defendants;  H  later  sold  the  rest  of  the  land  for  $2,100.  Held, 
that  defendants  and  H  were  guilty  of  a  legal  fraud  on  plain- 
tiff, and  must,  as  trustees,  account  to  him  for  the  profits  realized. 
Potvers  V.  Black,  159  Pa.  St.  153,  28  A.  133. 

An  agent  who  takes  a  conveyance  in  his  own  name  will  be 
charged  as  holding  it  in  trust  for  his  principal.  Sweet  v.  Ja- 
cocks,  6  Paige  (N.  Y.),  355;  Church  v.  Sterling,  16  Conn.  388; 
Pinnock  v.  Clough,  16  Vt.  500;  Switzer  v.  Skiles,  3  Gilm.  (111.) 
529;  Follanshee  v.  Kilbreaih,  17  111.  522.  Compare  1st  Bank 
V.  Bissell,  2  McCrary  (U.  S.),  73. 

A  mortgage  note  was  given  to  a  real  estate  broker  by  the 
mortgagee  for  collection,  and  the  mortgagor  also  placed  the 
land  in  said  broker's  hands  for  private  sale;  a  private  sale  which 
the  broker  attempted  to  make  having  failed,  on  account  of  a 
defect  in  the  title,  and  the  mortgagor  having  ceased  to  trust 
or  rely  on  the  broker,  the  latter  had  the  property  sold  under  a 
power  in  the  mortgage,  and  it  was  bought  by  a  third  person 
not  in  privity  with  the  broker.  Held,  that  the  broker  was  not 
guilty  of  a  breach  of  trust.  Eitchie  v.  Judd,  137  111.  453,  27  N. 
E.  682.  An  agent  who  has  invested  his  principal's  money  in 
land  and  taken  the  title  in  his  own  name,  will  not  be  allowed 
to  set  up  the  statute  of  frauds  against  the  enforcement  of  the 
trust,  on  the  ground  that  the  agency  was  without  written  au- 
thority.   Firestone  v.  Firestone,  49  Ala.  128. 

A  trustee  for  the  sale  of  assets  for  the  payment  of  debts  who 
purchased  them  himself  by  taking  undue  advantage  of  the  con- 
fidence reposed  in  him  by  the  plaintiff,  and  before  the  comple- 
tion of  the  contract  sold  them  at  a  highly  advanced  price,  was 
decreed  to  be  a  trustee  for  the  original  vendor  as  to  the  sums 
produced  by  such  second  sale.     Fox  v.  Mackreth,  2  Brown  Ch. 


58  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

(Eng.),  400.  "Where  plaintiff  employed  defendant  as  his  agent 
to  purchase  certain  property,  and  defendant  falsely  represented 
to  the  seller  that  it  was  necessary  that  he  should  take  the  title, 
and  wrongfully  procured  the  deed  to  be  made  in  his  own  name, 
he  held  title  as  a  trustee  ex  maleficio,  and  was  liable  at  the  suit 
of  the  plaintiff  to  be  compelled  to  convey.  Harrison  v.  Craven, 
188  Mo.  590,  87  S.  W.  962. 

A  co-agent,  under  a  power  to  sell,  is  not  bound  by  an  author- 
ized option  not  given  or  ratified  by  himself,  and  if  he  purchases 
the  land  himself  can  not  be  held  as  a  trustee  for  a  claimant 
under  the  option.  TiUs  v.  ZirUe,  55  W.  Va.  49,  46  S.  E.  701, 
104  Am.  St.  R.  977.  Where  real  estate  was  transferred  to  a 
trustee  to  hold  or  convey  the  same  as  he  thought  best,  items 
paid  real  estate  agents  and  others  as  commissions  on  sales  of 
real  estate,  which  were  shown  to  be  reasonable  commissions  for 
the  services  rendered,  were  properly  charged  against  the  trust 
estate.  Babbitt  v.  Fidelity  Trust  Co.,  70  N.  J.  Eq.  651,  66  A. 
1076. 

If  one  who  is  clearly  the  agent  for  another  to  purchase  prop- 
erty repudiates  the  agency  and  acts  for  himself,  using  his  own 
funds,  he  can  not  be  declared  a  trustee  for  his  principal,  al- 
though the  latter  may  have  been  misled  by  the  conduct  of  the 
former.  First  Bank  v.  BisseU,  2  McCrary  (IT.  S.),  73.  Compare 
Hutchison  v.  Hutchison.  4  Desau.  (S.  C),  77.  In  the  absence 
of  a  specific  agreement  therefor,  a  broker  who  procures  a  loan 
for  the  benefit  of  a  trust  estate  has  no  lien  on  such  estate  for 
his  commission,  his  remedy  being  against  the  trustee  personally. 
Johnson  v.  Leman,  LSI  111.  609,  23  N.  E.  435. 

Sec.  36.    Principal  and  ag-ent. 

The  relation  of  principal  and  agent  arises  out  of  contract. 
T  and  W  entered  into  an  agreement  with  0  to  sell  real  estate 
for  him  within  a  certain  time,  and  before  the  expiration  of  the 
time  0  requested  the  return  of  the  agreement;  W  offered  to 
purchase  the  land  himself  rather  than  lose  the  sale.  Held,  that 
the  offer  was  not  equivalent  to  a  sale,  the  relation  between  the 
parties  was  that  of  principal  and  agent,  and  could  not,  without 
O's  consent,  be  changed  into  that  of  vendor  and  purchaser. 
Tower  v.  O'NeU,  66  Pa.  St.  332.    A  broker  who  asks  and  ob- 


THE  CONTRACT  OF  AGENCY.  59 

tains  from  the  owner  the  price  of  land,  that  alone  does  not 
establish  the  relation  of  principal  and  agent ;  nor  a  contract  of 
employment.  Stephens  v.  Bailey,  149  Ala.  256,  42  S.  740;  Den- 
ton V.  Ahrams,  105  N.  Y.  S.  2,  120  App.  Div.  593.  Nor  does 
one  who  takes  an  option  to  purchase  real  estate  at  a  stated  price 
sustain  the  relation  of  agent  for  the  vendor  to  negotiate  its  sale. 
Southack  v.  Lane,  52  N.  Y.  S.  687,  23  Misc.  515,  r.  on  o.  gr.  65  N. 
Y.  S.  629,  32  Misc.  141;  Davenport  v.  Corheit,  98  N.  Y.  S.  403, 
112  App.  Div.  382. 

An  option  and  title  bond  taken  by  an  agent  to  insure  the 
carrying  of  a  sale  into  effect,  if  made,  does  not  change  the  re- 
lation of  principal  and  agent,  and  the  principal  remains  liable 
for  the  fraud  of  the  agent..  Alger  v.  Anderson,  78  Fed.  729. 

The  rule  that  a  sale  by  a  party  direct,  leaves  the  broker's 
right  to  commissions  intact,  where  the  latter  has  furnished  the 
purchaser,  and  has  thus  been  the  procuring  cause  of  the  sale, 
presupposes  a  relationship  of  principal  and  agent,  and  hence, 
where  that  relationship  does  not  exist,  the  rule  does  not  apply. 
Pecos  Valley  Imp.  Co.  v.  Cecil  (N.  M.  Sup.   '09),  99  P.  695.' 

Sec.  37.     Partnership^ 

A  contract  whereby  the  obligors  bind  themselves  to  contribute 
certain  moneys  toward  the  purchase  of  land,  does  not  constitute 
them  partners  so  as  to  authorize  one  to  select  a  trustee  to  take 
the  title  and  execute  notes  for  the  purchase  price  and  a  deed  of 
trust  as  security  therefor.  Ferguson  v.  Gooch,  94  Va.  1,  26  S. 
E.  397;  Fisk  V.  Waite  (Or.  Sup.  '09),  99  P.  283.  A  real  estate 
agent  can  not  be  permitted  to  form  an  arrangement  with  a  third 
party  to  purchase  the  land  of  his  principal  as  partners;  he  can 
not  assume  a  position  where  he  can  speculate  off  of  his  prin- 
cipal,   lieardon  v.  Washburn,  59  111.  App.  161. 

The  fact  that  the  partner  of  a  purchaser  produced  by  a  real 
estate  broker,  unknown  to  him,  attempted  to  buy  direct  from 
the  owner  and  that  the  owner  refused  to  sell  should  not  deprive 
the  broker  of  his  commissions  on  a  sale  made  to  his  customer, 
where  he  had  no  knowledge  of  the  partner's  negotiations,  and 
the  broker  acted  in  good  faith.  Hartford  v.  McGillicuddy ,  103 
Me.  224,  68  A.  860.  Where  a  real  estate  agent  has  a  written 
contract  with  the  owner  of  land  to  put  it  upon  the  market,  ad- 


60  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

vertise  and  sell  the  same,  having  for  his  interest  only  a  share 
in  the  surplus  profits  arising  from  the  proceeds  of  the  sale  of 
the  land.  Held,  that  the  contract  was  one  of  agency  and  not 
of  partnership.    Durkee  v.  Giinn,  41  Kan.  496,  21  P.  637. 

Where  a  firm  of  two  members  contracted  to  manage  and  sell 
the  lots  of  a  corporation  at  a  town  other  than  that  at  which  the 
partners  resided,  the  fact  that  the  business  was  carried  on  in 
the  town  where  the  lots  were  located  by  only  one  of  the  part- 
ners was  not  a  breach  of  the  contract.  Albany  Land  Co.  v. 
Rickel,  162  Ind.  222,  70  N.  E.  158. 

The  testimony  of  one  of  two  brokers  that  the  firm  never  re- 
ceived the  alleged  letter  revoking  their  authority  is  competent 
to  show  that  neither  he  nor  his  partner  received  it.  Sayre  v. 
Wilso7i,  86  Ala.  151,  5  S.  157. 

Authority  conferred  on  a  partnership  to  sell  real  estate  is 
terminated  on  the  dissolution  of  the  partnership.  Larson  v. 
Newman  (N.  D.  Sup.  '09),  121  N.  W.  202;  Mechem  on  Ag.  See. 
221.     Compare  Sec.  637b. 

The  illegality  of  a  real  estate  firm  agreement  arising  from 
the  fact  that  it  contemplated  the  representation  by  the  firm  of 
both  parties  in  the  transactions  does  not  affect  transactions 
wherein  the  firm  represented  but  one  party  and  earned  com- 
missions lawfully,  and  as  to  such  commissions  a  partner  can  not 
withhold  from  his  copartner  his  share,  on  the  ground  that  the 
firm  conducted  other  illegal  transactions.  Fryer  v.  Barker  (Iowa 
Sup.  '09),  121  N.  W.  526. 


CHAPTER  yil. 

SECTION.  SECTION. 

38.  Corporations.  40.     The  vendor. 

39.  Husband  and  wife.  41.     The  vendee  or  purchaser. 

Sec.  38.     Corporations. 

Where  defendants,  who  were  two  of  the  officers  of  a  cor- 
poration, employed  plaintiff  to  sell  the  corporate  assets  for  a 
certain  price,  and  he  procured  a  purchaser,  ready,  willing  and 
able  to  purchase  at  that  price,  it  was  no  defense  to  an  action 
brought  to  recover  commissions  that  plaintiff  knew  that  defend- 
ants did  not  own  a  majority  of  the  stock  of  the  corporation, 
and  that  plaintiff  did  not  procure  a  ratification  of  the  trans- 
action by  the  stockholders.  Norman  v.  Hopper,  38  Wash.  415, 
80  P.  551;  Lawson  v.  Black  Diamond  Coal  Mining  Co.  (Wash. 
Sup.   '09),  102  P.  759. 

In  an  action  by  a  real  estate  broker  for  commissions,  evi- 
dence held  insufficient  to  show  that  the  share  holders  of  the 
association  which  owned  the  real  estate  ever  authorized  the  offi- 
cers thereof  to  list  the  real  estate  with  plaintiff  for  sale,  or 
ratified  the  same.  Spottswood  v.  Morris,  12  Idaho,  360,  85  P. 
1094,  6  L.  R.  A.   (N.  S.)    665. 

The  treasurer  of  a  charitable  corporation,  without  authority, 
took  railroad  bonds  registered  in  the  name  of  the  corporation 
to  a  broker  for  sale,  the  broker  refused  to  handle  the  bonds 
unless  they  were  made  transferable  to  bearer  by  the  legal  trans- 
fer agent  of  the  railroad  company;  the  transfer  agent  required 
from  the  corporation  a  copy  of  a  resolution  of  its  directors 
authorizing  the  transfer  and  a  power  of  attorney  to  make  it; 
the  treasurer  drew  up  a  resolution  of  authority  and  forged 
thereto  the  signatures  of  the  officers  and  the  seal  of  the  cor- 
poration, and  also  forged  a  power  of  attorney;  the  transfer 
agent  thereupon,  in  good  faith,  made  the  transfer  and  the  broker 

61 


62  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

sold  the  bonds.  Held,  that  the  broker  and  the  railroad  com- 
pany were  liable  to  the  corporation  for  the  value  of  the  bonds, 
though  both  acted  in  good  faith,  and  the  corporation  may  re- 
cover from  either.  Jennie  Clarkson  Home  for  Children  v.  R. 
R.  Co.,  87  N.  Y.  S.  348,  1137,  1138,  92  App.  Div.  491,  618,  617, 
74  N.  E.  571,  1118,  182  N.  Y.  47,  507,  70  L.  R.  A.  787. 

Under  the  laws  of  Pennsylvania  a  corporation,  in  order  to 
lawfully  engage  in  the  business  of  buying  and  selling  real  estate 
for  others,  must  pay  a  license  tax  or  fee  to  the  commonwealth. 
Commonwealth  v.  Sam.  W.  Blacli,  34  Pa.  Super.  Ct.  431.  A 
broker  sustaining  a  relation  of  trust  to  a  purchasing  corpora- 
tion could  not  recover  a  commission  for  effecting  a  sale  of  real 
estate  to  it,  without  proof  that  the  purchaser  had  knowledge 
of  and  consented  to  his  contract  for  commissions.  Steel  v.  Law- 
yer, 47  Wash.  266,  91  P.  958;  Nekarda  v.  Presberger,  107  N. 
Y.  S.  897,  123  App.  Div.  418.     , 

A  person  dealing  with  an  officer  of  a  corporation  in  a  matter 
concerning  which  the  corporation  has  power  to  act  is  not  bound 
to  know  the  limits  of  the  officer's  authority  to  act  for  the 
corporation.  Groeltz  v.  Armstrong,  125  Iowa,  39,  99  N.  W.  128. 
A  written  contract  may  be  entered  into  by  a  corporation,  with- 
out formal  vote  or  written  entry  thereof,  by  its  directors,  where 
they  are  all  present  and  assent  thereto.  Jndimrn  Bermudez  Asp. 
Co.  V.  Robinson,  29  Ind.  App.  59,  63  N.  E.  797. 

A  corporation  organized  for  the  purpose  of  buying  land  and 
selling  it  out  in  lots,  is  not  bound  by  a  contract  between  the 
president  and  the  secretary  by  which  the  latter  was  to  have 
a  certain  commission  on  "each  lot  sold  for  the  company,"  de- 
fendan|;  is  liable  only  for  a  reasonable  commission  on  the  amount 
actually  received  from  such  sales,  the  officers  making  the  con- 
tract both  being  directors.  Louisville  Bdg.  Assn.  v.  Hegan,  20 
Ky.  L.  R.  1629,  49  S.  W.  796.  Where,  by  a  contract  in  regard 
to  the  sale  of  property,  a  broker  arranged  with  all  the  parties 
that  his  compensation  should  be  paid  in  certain  stock  of  a  com- 
pany to  be  formed  by  him  and  others  to  buy  the  land,  he  can 
not  hold  the  vendors  responsible  for  such  compensation.  Boides 
v.  Allen,  21  S.  E.  (Va.)  665.  Where  defendant  in  his  negotia- 
tions with  a  broker  did  not  purport  to  bind  himself  individually, 
but  purported  to  bind  a  corporation  of  which  he  was  the  pres- 


THE   CONTRACT   OF    AGENCY.  63 

ident,  no  recovery  can   be  had   against   him  for   commissions. 
Groeltz  v.  Armstrong,  125  Iowa,  39,  90  N.  W.  128. 

The  fact  that  a  broker  employed  to  effect  a  sale  is  a  director 
in  the  corporation  which  he  procures  to  buy  the  property  does 
not  prevent  him  from  recovering  commissions,  where  the  per- 
son who  practically  owns  the  capital  stock  of  the  corporation 
consents  to  the  transaction,  the  question  of  fair  dealing  being 
submitted  to  the  jury.  Goldshen  v.  Barrow,  85  N.  Y.  S.  395, 
42  Misc.  198.  Compare  Investment  Co.  v.  Ater,  49  Wash.  446, 
95  P.  1017.  In  an  action  brought  by  a  broker  against  a  cor- 
poration to  recover  commissions,  he  must  establish  his  employ- 
ment by  one  authorized  to  bind  the  corporation,  or  prove  a 
subsequent  knowledge  of,  adoption  and  ratification  of  his  em- 
ployment by  the  corporation.  Tivelfth  St.  Market  Co.  v.  Jack- 
son, 102  Pa.  St.  269;  Cohn  v.  James  McCreary  Realty  Co,'.,  92 
N.  Y.  S.  143,  102  App.  Div.  611. 

Sec.  39.     Husband  and  wife. 

One  who  negotiates  a  sale  of  land  belonging  to  a  husband 
and  wife  can  not  recover  of  the  husband  compensation  for  sell- 
ing the  wife's  interest  in  the  land,  unless  the  husband  agreev 
to  pay  therefor.  Spangeman  v.  Palestine  Blclg.  Assn.,  60  N.  J. 
L.  357,  37  A.  723 ;  Hansbrough  v.  Neal,  94  Va.  722,  27  S.  E.  593. 
It  does  not  follow  that  because  the  husband  has  charge  of  the 
wife's  property  and  has  authority  to  sell  the  same,  that  he  is 
authorized  to  employ  another  to  procure  a  purchaser.  Groscup 
V.  Downey,  105  Md.  273,  65  A.  930.     See  also  Sec.  1022. 

A  husband  undertaking  to  be  bound  for  the  commissions  of 
the  broker  for  effecting  a  sale  of  real  estate  for  his  wife,  is 
personally  bound  whether  he  discloses  his  agency  for  his  wif< 
or  not.    Jarvis  v.  Schaefer,  105  N.  Y.  289,  11  N.  E.  634. 

In  an  action  for  commi.ssions  on  a  sale  of  land  belonging  to 
defendant,  it  appeared  that  plaintiff  had  sold  other  land  for 
defendant  and  her  husband  .several  years  before,  and  that  this 
property  was  left  in  plaintiff's  hand  to  sell  for  $50,000,  and 
that  the  price  was  raised  until  finally  plaintiff  obtained  an 
offer  of  $65,000,  which  was  reported  to  def(>ndant  and  her  hus- 
band, and  which  each  agreed  to  accept — the  husband  got  an 
abstract  of  title  and  the  purchaser  placed  checks  with  the  plain- 


64  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

tiff  to  bind  the  bargain — but  when  the  time  came  for  closing 
the  sale  defendant  declined  to  execute  the  deed.  Held,  that 
there  was  evidence  to  go  to  the  jury  as  to  the  plaintiff's  em- 
ployment by  the  defendant  or  by  the  husband  as  her  agent. 
Codd  V.  Seitz,  94  Mich.  191,  53  N.  W.  1057 ;  Sims  v.  Rockwell, 
156  Mass.  372,  31  N.  E.  484.  The  refusal  of  the  wife  to  join 
with  the  husband  in  a  deed  of  conveyance  does  not  protect 
the  principal  from  liability  for  the  commission  earned  by  the 
broker  in  procuring  a  purchaser.  Tebo  v.  Mitchell,  5  Pennewill 
(Del.),  356,  63  A.  327;  Hamlin  v.  Schulte,  34  Minn.  534.  27 
N.  W.  301 ;  Goldberg  v.  Gelles,  68  N.  Y.  S.  400,  33  Misc.  797 ; 
Clapp  v.  Hughes,  1  Phila.  (Pa.)  382. 

A  man  is  not  bound  by  a  contract  for  the  sale  of  his  land 
made  by  a  broker  in  accordance  with  letters  and  a  telegram 
sent  by  his  wife,  who,  although  attending  to  his  correspondence 
and  the  renting  of  his  propert\'^,  had  no  written  authority  to 
contract  for  him,  and  who  sent  the  letters  and  telegram  in 
question  without  informing  him  of  their  contents.  Edwards  v. 
Tyler,  141  111.  454,  31  N.  E.  312.  To  sustain  an  action  for 
commissions  a  broker  must  show  a  direct  employment  by  the 
principal,  or  a  direct  authority  for  him  to  treat  with  the  agent 
of  the  principal;  if  the  wife  for  her  husband  be  relied  upon 
special  authority  or  ratification  must  be  shown.  Harper  v. 
Goodall,  62  How.  Pr.  (X.  Y.)  288,  10  Abb.  N.  Cas.  161:  Harrell 
v.  Veith,  13  N.  Y.  St.  738.  The  same  rule  applies  in  the  case 
of  a  wife's  propert.v.  Hwd  v.  Lee,  116  N.  Y.  S.  445.  Where 
one  employs  a  real  estate  broker  to  find  a  buyer  for  land,  which 
he  occupies  with  his  wife  as  a  homestead,  and  the  broker  pro- 
duces a  purchaser  ready  and  willing  to  take  the  property,  the 
broker's  claim  for  compensation  is  not  defeated  by  the  fact  that 
the  sale  is  prevented  by  the  refu.sal  of  the  wife  to  execute  a 
conveyance.  Branch  v.  Moore,  84  Ark.  462,  105  S.  W.  1178; 
Staley  v.  Hufj'urd,  73  Kan.  686   85  P.  763;  Carey  v.  Whitm/in, 

110  Mo.  App.  204,  84  S.  W.  1131;  Young  v.  liuhwedel,  119  Mo. 
App.  231,  96  S.  W.  228;  Kepner  v.  Ford   (N.  D.  Sup.    '07), 

111  N.  W.  619. 

The  same  is  true  of  the  sale  of  other  property  in  which  the 
wife  refuses  to  relinquish  her  right  of  dower.  Cook  v.  Fryer, 
3  Ky.  L.  R.   (abst.)  612.     Also,  where  the  wife  refused  to  sign 


THE  CONTRACT  OF  AGENCY.  65 

the  deed  unless  given  half  the  proceeds  of  sale,  with  which 
demand  the  husband  would  not  comply.  Marlin  v.  Sipprell, 
93  Minn.  271,  101  N.  W.  169.  The  defendant,  without  au- 
thority from  his  wife,  employed  plaintiff  as  a  broker  to  sell 
her  real  estate,  but  the  written  authorization  to  offer  the  prop- 
erty for  sale  was  not  signed  by  the  wife  or  her  attorney  in 
fact,  as  required  by  the  statute.  Held,  that  as  plaintiff  could 
not  have  recovered  against  the  wife  by  virtue  of  such  invalid 
writing,  even  if  defendant  had  had  authority  to  place  the  prop- 
erty for  sale,  defendant  was  not  individually  liable  for  the 
breach  of  an  implied  warranty  of  authority.  Hochbaum  v. 
Botter,  101  N.  Y.  S.  531. 

A  married  woman,  under  the  statutes  of  Indiana,  has  power 
to  bind  herself  for  the  payment  of  a  broker's  services  rendered 
in  the  sale  of  her  real  estate,  Ispherding  v.  Wolf,  36  Ind.  App. 
250,  75  N,  E.  598.  A  married  woman,  without  separate  es- 
tate, who  in  1892  bought  a  farm,  took  title  to  it,  enjoyed  its 
fruits  for  seven  years,  and  then  sold  it  and  received  the  pur- 
chase money,  can  not  escape  liability  upon  her  written  promise 
to  pay  for  the  land  and  the  personal  property  which  was  ap- 
pended thereto,  on  the  ground  that  the  obligation  was  not 
binding  upon  her,  and  that,  without  any  offer  to  return  either 
the  property  or  the  proceeds  of  the  sale.  Crosby  v.  Waiters, 
28  Pa.  Super.  Ct.  559. 

Sec.  40.    The  vendor. 

"Where  a  broker  fs  employed  to  sell  real  estate  he  is  the  agent 
of  the  vendor.  Gough  v.Loomis,  123  Iowa,  642,  99  N.  W.  295; 
Earp  V,  Cummins,  54  Pa.  St.  394.  If  the  vendor  secretly  pays 
a  commission  to  the  purchaser's  broker,  the  purchaser  has  a 
right  of  action  against  the  vendor  to  recover  the  amount  there- 
of. Grant  v.  Gold  Ex.  Syn.  1  Q.  B.  (Eng.)  233,  69  L.  J.  Q.  B. 
150,  82  L.  T.  R.  N.  S.  5,  48  Weekly  Rep.  280.     See  Sec.  401. 

Where,  through  the  misrepresentation  of  the  vendor,  inno- 
cently repeated  by  the  broker  to  the  prospective  purchaser,  and 
the  falsity  of  which,  being  discovered,  defeated  the  sale,  the 
broker  was  held  not  entitled  to  his  commission,  for  had  it  not 
been  for  the  misrepresentation  the  prospective  purchaser  would 
not  have  entered  into  the  agreement.     Crockett  v.  Grayson,  98 


66  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Va.  354,  36  S.  E.  477.  Contra,  Goodman  v.  Hess,  107  N.  Y.  S. 
112,  56  Misc.  482.  Where. it  appears  that  a  real  estate  agent 
employed  to  sell  land  had  acted  in  similar  transactions  for  the 
vendor,  that  after  making  the  sale  the  agent  was  active  in 
assisting  the  vendee's  agent  in  clearing  up  some  defects  in  the 
title,  that  he  filled  up  a  deed  and  carried  it  to  the  vendor  to 
sign,  and  then  took  it  away,  without  objection  on  the  part  of 
the  vendor,  delivered  it  to  the  vendee's  agent,  and  received  the 
purchase  money,  which  he  appropriated  to  his  own  use,  and 
the  vendor  subsequently  admitted  to  disinterested  persons  that 
she  had  authorized  the  agent  to  collect  the  monev,  the  loss 
thereof  must  fall  on  the  vendor,  under  whose  authority  the  agent 
acted.  Frank  v.  Levy,  10  Ohio  Cir.  Ct.  R.  554.  Compare  Rhode 
V.  Marquis,  135  Mich.  48,  97  N.  W.  53.  Where  a  broker  acts 
openly  and  himself  buys  the  property,  the  vendor  accepting 
him  as  such,  he  is  entitled  to  itecover  commissions  for  the  sale, 
upon  clear  proof  that  such  was  the  understanding  of  the  vendor 
at  the  time  of  the  sale.    Grant  v.  Hardy,  33  Wis.  668. 

A  real  estate  agent  employed  to  buy  certain  property  at  a 
certain  price,  does  not  forfeit  the  commission  which  the  pur- 
chaser agreed  to  pay  him,  because  he  secured  another  com- 
mission from  the  vendor  after  the  vendor  had  accepted  the  terms 
offered.  Jones  v.  Henry,  36  N.  Y.  S.  483,  15  Misc.  151.  A 
contract  to  pay  real  estate  agents  commissions  for  their  ser- 
vices in  endeavoring  to  effect  a  sale,  entitles  the  agents  to  com- 
missions if  they  produce  a  purchaser  to  whom  the  vendor  in 
fact  sells.  Bowe  v.  Gage,  127  Wis.  245,  KW  N.  W.  1074,  115 
Am.  St.  R.  1010.  An  innocent  vendor  can  not  be  sued  in  tort 
for  the  fraud  of  his  agent  in  effecting  a  sale;  in  such  case  the 
vendee  may  rescind  the  contract  and  reclaim  the  money  paid, 
and  if  not  repaid,  may  sue  the  vendor  in  assumpsit  for  it,  or 
he  may  sue  the  agent  for  the  deceit.  Kennedy  v.  McKay,  43 
N.  J.  L.  288. 

Where  a  broker  procured  a  purchaser  for  the  land  sold  by 
taking  another  piece  of  land  for  a  part  of  the  price,  and  those 
terms  were  accepted  by  the  vendor,  the  transaction  was  a  sale, 
and  entitled  the  broker  to  the  performance  of  the  vendor's  con- 
tract to  allow  him  all  over  a  specified  amount  that  he  could 
get  for  the  land.     Ullman  v.  Land,  37  Tex.  Civ.  App.  422,  84 


THE  CONTRACT  OF  AGENCY.  67 

S.  W.  294;  Thornton  v.  ^yoody  (Tex.  Civ.  App.  '93),  24  S.  W. 
331.  See  also  Sees.  121,  164.  A  purchaser  contracted  to  buy 
land  and  agreed  to  pay  one-third  cash;  the  sale  was  not  made. 
Held,  that  the  broker,  in  order  to  recover  his  commissions,  was 
not  required  to  prove  that  the  purchaser  was  of  such  financial 
responsibility  that  his  notes  for  the  balance  would  have  been 
good,  irrespective  of  a  vendor's  lien,  the  contract  employing 
the  broker  not  stipulating  that  the  purchaser  should  have  such 
financial  responsibility.  Clark  v.  Wilsmi,  41  Tex.  Civ.  App. 
450,  91  S.  W.  627.  A  vendor  may,  if  he  is  doubtful  of  the 
proposed  vendee's  ability  to  carry  out  his  contract  of  pur- 
chase, accept  the  contract  conditionally,  and  agree  to  sell,  pro- 
vided the  purchaser  proves  able  to  perform  its  condition.  Flynn 
V.  Jordal,  124  Iowa,  457,  100  N.  W.  326.  A  broker  for  a  pur- 
chaser of  real  estate  can  not  call  upon  his  employer  to  go  to 
the  place  of  business  of  the  vendor,  and  there  make  the  con- 
tract or  negotiate  for  its  terms.  Logan  v.  McMullen,  4  Cal. 
App.  154,  87  P.  285. 

Sec.  41.     The  vendee  or  purchaser. 

Where  a  broker  is  employed  to  buy  real  estate  he  is  the 
agent  of  the  vendee.  Marsh  v.  Buchan,  46  N.  J.  Eq.  595,  22  A. 
128,  Where  a  vendor  under  a  contract  for  the  sale  of  lands, 
which  is  within  the  statute  of  frauds  because  not  in  writing, 
is  nevertheless  willing  and  offers  to  perform  on  his  part,  but 
the  vendee  refuses  to  fulfill  and  repudiates  the  contract,  the 
latter  is  not  entitled  to  recover  any  installments  of  purchase 
money  paid.  McKinne  v.  Harvie.  38  Minn.  18,  35  N.  W.  668. 
Where  an  agent  is  authorized  to  sell  and  convey  lands,  and  en- 
ters into  a  contract  with  the  vendee,  his  receipts  bind  the  prin- 
cipal.    Peck  V.  Ilarrioit,  6  Serg.  &  R.   (Pa.)   146. 

The  owner  of  land  authorized  a  broker  to  make  a  sale  there- 
of, "commissions  to  be  paid  out  of  payments  as  made,"  and  a 
letter  in  setting  forth  the  terms  of  the  sale  provided  that  on 
default  by  the  purchaser  all  prior  payments  should  be  forfeited 
and  neither  party  have  any  claims  on  the  other;  the  broker 
found  a  purchaser,  who  gave  a  deed  of  trust  to  secure  the  pay- 
ments and  subsequently  defaulted;  thereafter,  the  vendor  re- 
leased the  vendee  from  his  obligations  and  conveyed  to  another, 


68  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

and  the  broker  sued  for  commissions  on  the  entire  price.  Held, 
that  the  contract  between  the  parties  did  not  entitle  the  broker 
to  commissions  except  on  those  payments  actually  made  by  the 
vendee.  Murray  v.  Rickard,  103  Va.  132,  48  S.  E.  871.  Com- 
pare Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  App. 
Div.  119. 

A  vendee,  defrauded  by  the  agent  of  the  vendor,  may  re- 
scind the  contract  and  reclaim  the  money  paid,  and  if  not  re- 
paid may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue  the 
agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L.  288; 
Farris  v.  Wilder  (Tex.  Civ.  App.  '09),  115  S.  W.  645.  Where 
the  vendee  knows  that  the  vendor  is  a  broker,  and  though  there 
is  reason  to  believe  he  is  selling  the  property  for  some  prin- 
cipal, yet  if  he  does  not  see  fit  to  bind  his  principal  by  the 
form  of  the  contract  made,  by  contracting  in  his  own  name, 
he  may  become  liable  as  a  vendor.  Scaling  v.  Knollin,  94  111. 
App.  443.  A  broker  to  purchase  real  estate  for  a  vendee  can 
not  call  on  his  principal  to  go  to  the  place  of  business  of  the 
vendor  to  make  the  contract  or  negotiate  as  to  its  terms.  Logan 
V.  McMidlen,  4  Cal.  App.  154,  87  P.  285.  If  the  contract  re- 
quires the  price  to  be  paid  in  cash,  the  purchaser  must  have 
the  cash  at  the  time  available  for  the  purpose.  Neiderlander 
V.  Starr,  50  Kan.  766,  32  P.  359;  Watters  v.  Dancey  (S.  D. 
Sup.  '09),  122  N.  W.  430.  It  is  not  sufficient  that  the  purchaser 
has  property  from  which  the  price  might  be  realized  by  suit. 
Dent  V.  Pawell,  93  Iowa,  711,  61  N.  W.  1043. 

If  at  the  time  of  signing  the  contract  the  purchaser  is  ready 
to  make  the  payment  then  due,  the  broker  is  not  required  to 
show  that  he  has  funds  available  to  make  the  final  payment. 
Levy  V.  Ruff,  23  N.  Y.  S.  1002,  4  Misc.  180.  Mere  insolvency 
of  the  purchaser  does  not  defeat  the  broker's  right  to  commis- 
sions where  the  sale  contemplated  being  secured  by  a  bond  and 
deed  of  trust,  which  the  purchaser  is  prepared  to  deliver.  Ross 
V.  Fickling.  11  App.  Cas.  (D.  C.)  442.  The  fact  that  the  pur- 
chaser procured  was  representing  a  concealed  principal  does 
not  afi'ect  the  broker's  right  to  commissions,  if  the  produced 
purchaser  was  able,  ready  and  Avilling  to  buy  on  the  terms  au- 
thorized by  the  principal  and  no  binding  written  contract  of 
sale  is  required.     Gellott  v.  Ridge,  117  Mo.  553,  23  S.  W.  882. 


THE  CONTRACT  OF  AGENCY.  69 

Where  land  is  intrusted  to  a  broker  to  sell  and  collect  the 
purchase  money,  a  purchaser  is  entitled  to  credit  for  payments 
made  to  the  broker  before  the  receipt  by  the  purchaser  of  a 
notice  of  the  withdrawal  of  the  broker's  authority.  Meeker  v. 
Mannin,  162  111.  203,  44  N.  E.  397;  Lawler  v.  Armstrong  (Wash. 
Sup.  '09),  102  P.  775.  A  purchaser  who  makes  a  parol  con- 
tract and  repudiates  it  before  it  is  reduced  to  writing,  bars  the 
right  of  the  broker  to  recover  commissions.  Gilchrist  v.  Clarke, 
86  Tenn.  583,  8  S.  W.  572 :  Slomnn  v.  Bodivcll,  24  Neb.  790, 
40  N.  W.  321.  A  purchaser  buying  real  estate  of  an  agent 
must,  at  his  peril,  ascertain  the  extent  of  the  agent's  powers, 
Milne  v.  Kleh,  14  A.  646,  810,  44  N.  J.  Eq.  378.  See  also  Sec.  18. 
After  concluding  the  contract  of  sale  a  broker  may  become 
the  agent  of  the  purchaser,  when  he  puts  money  into  the  hands 
of  said  agent  to  pay  for  the  land.  Small  v.  Collins,  6  Houst. 
(Del.)  273. 

A  complaint  in  an  action  to  recover  a  real  estate  broker's 
commission  is  not  demurrable  because  of  failure  to  allege  that 
the  agent  disclosed  to  defendant  the  identity  of  the  purchaser, 
where  it  does  not  appear  that  he  refused  to  do  so,  or  that  the 
defendant  made  demand  therefor,  or  suffered  any  injury  from 
the  fact  of  concealment.  Bertleson  v.  Hoffnuin,  35  Wash.  459, 
77  P.  801.  A  broker  who  conceals  the  name  of  the  real  pur- 
chaser, and  puts  forward  a  fictitious  purchaser,  commits  a  legal 
fraud  and  can  not  recover  commissions.  Pratt  v.  Patterson,  12 
Phila.  (Pa.)  460,  112  Pa.  St.  475.  An  owner  of  real  estate 
who  oflPers  to  pay  a  certain  sum  to  another  if  he  finds  a  pur- 
chaser at  a  named  price,  may.  nevertheless,  sell  the  property 
himself,  at  any  time  before  the  other  has  acted  upon  the  offer 
and  secured  a  purchaser,  and  securing  a  party  who  will  pur- 
chase on  different  terms  from  those  proposed  by  the  owner  in 
his  offer  is  not  securing  a  purchaser  within  the  meaning  of 
the  contract  so  as  to  entitle  the  broker  to  a  commission.  Barrow 
v.  Harlow,  21  Wis.  306. 

A  land  agent  is  not  entitled  to  commissions  or  compensation 
for  procuring  a  purchaser  of  a  plantation,  when  it  is  shown 
that  the  intended  purchaser  declined  to  complete  the  contract, 
without  fault  or  negligence  on  the  part  of  the  principal,  on 
account  of  a  s^ipposed  defect  in  the  title.    Blankcnship  v,  Ryer- 


70  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

son,  50  Ala.  426.  Where  a  real  estate  agent,  for  an  agreed 
compensation,  undertakes  to  find  a  purchaser  satisfactory  to  the 
owner,  he  alone  has  the  right  to  determine  the  consideration 
for  which  he  will  sell  and  the  details  governing  the  payments. 
Kilham  v.  Wilson.  U2  Fed.  565,  50  C.  C.  A.  108. 

An  agreement  between  the  owner  of  real  estate  and  an  agent 
Avhereby  the  latter  was  appointed  to  collect  rents,  make  neces- 
sary improvements,  keep  the  property  insured,  pay  the  taxes 
and  the  expenses  that  might  become  necessary  with  a  view  to 
procuring  purchasers,  and  to  receive  for  compensation  a  spec- 
ified per  cent,  of  the  amount  collected,  did  not  constitute  him 
an  agent  with  authority  to  procure  a  purchaser  of  the  prop- 
erty.   Heim  v.  Ashton,  121  Iowa,  265,  96  N.  W.  745. 

A  contract  made  by  a  broker  to  procure,  for  a  compensation, 
certain  property  for  a  purchaser,  is  not  wnthin  the  statute  for 
offering  real  estate  for  sale,  requiring  that  the  broker  should 
have  written  authority  from  the  owner  of  the  property.  Fried- 
man V.  Buitker,  91  N.  Y.  S.  896,  45  Misc.  178. 

Where  a  land-owner  employed  the  plaintiff  to  find  a  pur- 
chaser on  terms  whereby  a  certain  cash  payment  was  to  be 
made  and  a  mortgage  given,  and  on  producing  the  proposed 
purchaser  the  plaintiff  offered  to  pay  the  whole  of  the  pur- 
chase money,  if  the  land-owner  was  not  satisfied  with  the  pur- 
chaser's ability  to  make  the  deferred  payments  when  they  fell 
due,  it  was  held  that  such  offer  did  not  remove  the  objection 
of  inability  of  the  purchaser  to  perform  the  contract,  as  it 
amounted  to  a  proposal  to  vary  the  terms  of  the  proposed  sale. 
Young  v.  Euliivedel,  119  ]\Io.  App.  231,  96  S.  W.  228.  Compare 
Ricke  V.  Post,  110  N.  Y.  S.  79,  125  App.  Div.  607. 

So,  where  a  broker  sought  to  recover  commissions  for  findmg 
a  purchaser  for  defendant's  real  estate,  a  showing  on  the 
part  of  plaintiff  that  he  produced  a  person  willing  to  take  the 
propertj^  at  defendant's  price,  on  condition  that  the  plaintiff 
furnished  or  procured  the  necessary  money,  and  that  plaintiff 
had  promise  of  a  loan  to  enable  him  to  do  so,  did  not  show 
performance  on  the  part  of  plaintiff.  McCune  v.  Badger,  126 
Wis.   186,  105  N.  W.  667. 

Where  a  broker  made  active  efforts  to  effect  a  purchase  for 
his  employer,  but  another  broker  first  procured  a  satisfactory 


THE  CONTRACT  OF  AGENCY.  71 

offer  of  sale,  the  first  broker  was  not  entitled  to  any  commis- 
sions. Friedman  v.  Pohtein,  97  N.  Y.  S.  1032,  49  Misc.  644. 
In  the  absence  of  a  special  contract  a  broker  is  not  entitled 
to  a  commission  on  merely  bringing  a  purchaser,  who  was 
ready,  willing  and  able  to  pay  the  price  demanded,  where  no 
sale  was  made,  because  of  a  disagreement  as  to  when  the  trans- 
fer should  take  place.  Ilaase  v.  Schneider,  98  N.  Y.  S.  587, 
112  App.  Div.  336.     See  also  Sec.  33. 

A  real  estate  agent  does  not  produce  purchasers  willing  to 
execute  the  contract  on  the  terms  prescribed  so  as  to  be  en- 
titled to  a  commission,  where  they  insist  upon  more  onerous 
terms  than  those  originally  agreed  upon,  and  on  denial  thereof 
refuse  to  buy.  Weiss  v.  BoUnson,  98  N.  Y.  S.  429,  112  App. 
Div.  276.    See  also  Sec.  33. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  it  appeared  that  the  person  procured  by  the  broker 
entered  into  a  contract  with  the  owner  which  stipulated  for  a 
sale  of  the  real  estate  for  a  specified  sum  and  two  mortgages, 
and  required  the  closing  of  the  contract  at  a  subsequent  date; 
the  parties  failed  to  close  the  contract  because  of  the  exist- 
ence of  a  third  mortgage  on  the  premises.  Held,  that  the  broker 
was  not  entitled  to  commissions;  the  person  procured  by  him 
having  no  right  to  refuse  to  enter  into  a  contract  for  the  pur- 
chase of  the  property  subject  to  two  mortgages  only,  where 
the  owner  was  able  to  perform  the  contract  when  the  time  for 
the  passing  of  the  title  arrived.  Shapiro  v.  Nadler,  99  N.  Y.  S. 
879,  51  Misc.  13.     See  also  Sec.  33. 

Where  a  broker  was  employed  to  procure  a  purchaser,  or 
one  willing  to  exchange  properties,  his  contract  was  performed 
when  he  procured  a  purchaser  able  and  willing  to  purchase  or 
exchange,  and  the  fact  that  the  broker  made  material  misrep- 
resentations as  to  the  property  exchanged  for  his  client's  was  no 
bar  to  his  recovery  of  his  commissions,  as  the  agent  performed 
his  contract  when  he  brought  the  parties  together,  and  they, 
themselves,  concluded  the  trade.  Nichols  v.  Whitacre,  112  Mo. 
App.  692,  87  S.  W.  594.  See  Sec.  475.  A  broker  employed 
to  sell  land  on  commission  has  a  right  to  give  a  part  of  the 
commissions  to  the  purchaser.  Stephens  v.  Tomlinson  (Tex. 
Civ.  App.  '05),  88  S.  W.  304. 


72  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Where  the  plaintiff,  in  an  action  for  the  breach  of  a  con- 
tract to  sell  real  estate  for  the  purchase  of  which  he  entered 
into  t»  contract  with  the  agent,  knew,  as  did  also  the  agent,  the 
terms  on  which  the  defendant  would  sell,  but  chose  to  enter 
into  a  contract  contrary  thereto,  he  is  not  entitled  to  recover. 
Fleming  v.  Burke,  122  Towa,  433,  98  N.  W.  288.  See  also  Sec. 
307.  Where  a  real  estate  agent  claims  compensation  for  se- 
curing the  attendance  of  a  purcha.ser  at  a  public  land  sale,  he 
must  at  least  show  that  he  had  some  effect  upon  the  purchaser's 
attendance.  PerJcim  v.  Underhill,  103  N.  Y.  S.  25,  118  App. 
Div.  170. 

In  Nebraska,  to  entitle  a  broker  to  recover  on  a  purchase  of 
real  estate,  it  is  necessary  that  he  procure  a  valid  conveyance 
of  the  real  estate  or  an  enforceable  contract  for  a  sale.  Bolton 
v.  Cohurn,  78  Neb.  731,  111  N.  W.  780,  782.  Where  the  owner 
of  property  employed  a  real  estate  broker  to  find  a  purchaser, 
the  mere  fact  that  the  prospective  purchaser  found  by  him 
afterward  notified  him  that  she  did  not  intend  to  purchase  did 
not  deprive  him  of  his  right  to  compensation,  where  she  actually 
purchased  the  property  within  two  or  three  months  thereafter. 
Groscup  v.  Downey,  105  Md.  273,  65  A.  930.  Compare  Sallee 
V.  McMurray,  113  Mo.  App.  253,  88  S.  W.  157. 


CHAPTER  YIII. 


SECTION'. 

SECTION. 

42.     The  owner. 

46.     De^th,   and  its   effect  on  con' 

43.     Covenants. 

tracts. 

44.     Conditional    contracts. 

47.     Approval  of  principal. 

45.     Condition   precedent  to 

taking 

48.     Abbreviations. 

effect. 

Sec.  42.     The  owner. 

Where  a  non-resident  owner  employs  a  non-resident  agent  to 
soli  real  ertate,  the  agent  is  authorised  to  employ  a  sub-agent. 
EasUand  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W.  574.  An 
owner  writing  to  his  broker  after  the  time  given  to  sell  had 
expired,  directing  him  to  sell,  if  possible,  within  the  next  thirty 
days,  if  he  could  get  a  certain  sum  net,  extended  the  term  of 
employment.  Johnson  v.  Wright,  124  Iowa,  61,  99  N.  W.  103. 
See  also  See.  560.  Where  an  owner  informed  his  broker  that 
it  v/ouid  not  be  necessary  for  him  to  produce  the  purchaser  to 
reduce  the  contract  to  writing,  further  steps  in  the  matter  by 
the  broker  were  unnecessary.  Gerhart  v.  Peck,  42  Mo.  App.  644. 
Wh(^re  the  owner  of  a  building  employed  brokers  to  obtain  ten- 
ants, and  authorized  the  brokers  to  conduct  their  customers 
into  the  building,  he  was  liable  for  injuries  sustained  by  a 
customer  while  examining  the  building  in  company  with  the 
brokers  and  due  to  their  negligence.  Boyd  v.  U.  8.  Mtge.,  etc., 
Co.,  94  N.  Y.  App.  Div.  413,  88  S.  289. 

The  mere  erection  of  a  sign  on  property  by  real  estate  agents 
as  for  sale  by  them,  the  name  of  the  owner  not  being  stated, 
does  not  hold  them  out  as  agents  to  the  public,  and  as  having 
general  authority  to  bind  the  owner  by  a  contract  of  sale.  Davis 
v.  Gordon,  87  Va.  559,  13  S.  E.  35.  If  a  letter  amounts  to  a 
request  to  the  person  addressed  to  procure  a  purchaser  for 
land,  when  the  writer  was  part  owner  of  the  land  and  had  full 
authority  to  act  for  the  other  owners  and  the  person  addressed 

73 


74:  AMERICAN   LAW   REAL   ESTATE   AGENCY, 

acted  upon  the  letter  and  did  procure  a  purchaser  satisfactory 
to  the  owner,  and  they  concluded  to  sell  the  land  to  such  pur- 
chaser, the  owners  were  legally  liable  to  pay  the  commissions 
promised.  Fish  v.  Henerie,  13  Oregon,  15G,  9  P.  322.  If  any 
of  the  terms  of  sale  as  to  payment,  abstracts  or  time  are  un- 
satisfactory to  the  owner,  he  should  object  on  that  ground,  and 
not  refuse  absolutely  to  sell.     Weaver  v.  Snoiv,  60  111.  App.  624. 

Where  a  contract  ran  for  one  year,  and  provided  that  if 
plaintiff,  a  real  estate  broker,  effected  a  sale  of  defendant's 
propertj^  he  was  to  receive  a  certain  commission,  and  in  case 
a  sale  was  made  without  his  aid  or  the  property  was  withdrawn 
from  sale,  one-half  commissions.  Held,  that  a  lease  for  five 
years  made  by  defendant,  with  the  exclusive  privilege  to  the 
lessee  of  purchasing  at  a  fixed  f)rice  at  any  time  before  the 
expiration  of  the  lease,  was  a  sale  within  the  meaning  of  the 
contract,  and  entitled  plaintiff  -to  one-half  of  the  commissions. 
Rucker  v.  Hall,  105  Cal.  425,  38  P.  962.  Compare  Sec.  19. 
Where  a  land-owner,  who  has  engaged  a  real  estate  agent  to 
sell  land  at  a  certain  price,  is  forced  to  join  with  a  joint  owner 
to  effect  a  sale,  and  sell  at  a  reduced  price,  the  agent  is  not 
entitled  to  commissions.  Buhl  v.  Noe,  51  111.  App.  622.  The 
owner  of  land  authorized  a  broker  to  sell  it  and  afterwards 
sold  it  himself,  the  broker  then  found  a  purchaser  and  sued 
for  his  commissions.  Held,  that  he  could  recover  only  on  the 
ground  of  the  owner's  breach  of  the  contract,  and  not  on  the 
ground  that  he  had  fulfilled  his  contract  as  broker,  for  the 
owner  still  had  the  power  to  sell  the  land  himself.  Metzer  v. 
Wyatt,  41  111.  App.  487.  See  authorities  that  a  sale  puts  an  end 
to  the  contract  with  the  broker.  Sec.  15. 

One  who  purchases  real  estate  from  a  non-resident  owner, 
through  a  real  estate  broker,  is  bound  to  ascertain,  not 
only  the  terras  of  his  authority,  but  also  the  correspond- 
ence by  which  such  authority  w^as  obtained.  Merritt  v. 
Wassemch,  49  Fed.  785;  Sidlivant  v.  Jahren,  71  Kan.  127,  79 
P.  1071.  Where  certain  land  stood  in  the  name  of  a  third 
party,  and  the  real  owner  procured  a  broker  to  sell  the  land 
who  made  false  representations  as  to  its  value,  and  the  nominal 
owner  of  the  land  held  title  to  a  bond  and  mortgage  given  in 
part  payment  of  the  price.     Held,  that  the  fraud  of  the  real 


THE  CONTRACT  OF  AGENCY.  75 

owner  and  the  broker  was  imputable  to  the  person  in  whose 
name  they  acted.  Fairchild  v.  McMaJion.  139  N.  Y.  290,  34 
N.  E.  779,  affirming  20  N.  Y.  S.  31,  65  Hun,  621. 

If  one  employed  to  manage  property  for  its  owner  is  era- 
powered  to  make  such  repairs  only  as  are  necessary  to  pre- 
serve and  protect  the  property  from  ordinary  wear  and  tear, 
he  can  not  charge  the  owner  with  the  expense  of  permanent 
improvements,  as  of  rebuilding  after  a  fire.  Beekman  v.  Wil- 
son, 61  Cal.  335.  An  exclusive  agency  to  sell  merely  prohibits 
the  appointment  of  another  agent  for  the  sale  of  the  property, 
but  does  not  prevent  the  owner  himself  from  making  a  sale. 
Dole  V.  Sherwood,  41  Minn.  535,  43  N.  W.  569.  In  the  case 
of  an  agency  to  sell  real  estate,  the  exclusive  right  to  sell  not 
being  given,  the  owner  himself  still  has  the  right  to  make  a 
sale  independent  of  the  agent,  and  in  such  case  will  not  be 
liable  to  the  agent  for  commissions,  unless  he  sells  to  a  pur- 
chaser procured  by  the  agent.  Dole  v.  Sherwood,  41  IMinn.  535, 
43  N.  W.  569 ;  Hiingerford  v.  Eicls,  39  Conn.  259 ;  GUhert  v. 
Coons,  37  111.  App.  448 ;  Darrow  v.  Harlow,  21  Wis.  306 ;  Tracey 
V.  liadeki  (Iowa  Sup.  '09),  119  N.  W.  525. 

The  owner  of  property  who  sells  it  himself  within  the  period 
which  he  has  given  to  a  broker  to  make  a  sale  thereof,  although 
the  broker  has  done  nothing  toward  facilitating  the  sale  of  the 
property,  and  the  contract  is  unsupported  by  a  valuable  con- 
sideration, must  pay  the  latter  the  commissions  agreed  on. 
Carle  v.  Parent  (IMontreal  Law  Reports),  5  Q.  B.  451;  Camp- 
bell V.  Thomas,  87  Cal.  428 ;  Oregorij  v.  Bonneij,  135  Cal.  589, 
67  P.  1038;  Lipscomb  v.  Cole,  81  Mo.  App.  53;  Stringfellow  v. 
Powers,  4  Tex.  Civ.  App.  199,  23  S.  W.  313;  Barrel  v.  Zimple- 
men,  66  Tex.  292,  17  S  W.  478 ;  Scchrist  v.  Atkinson,  31  App. 
(D.  C.)  1. 

In  a  New  York  case  of  a  similar  exclusive  character,  where 
the  agent  performed  no  services  in  relation  to  the  sale  of  the 
property  on  which  he  asked  commissions,  his  claim  was  denied 
on  the  ground  of  want  of  consideration.  Wright  v.  Fulling,  93 
N.  Y.  S.  228,  104  App.  Div.  49.  Where  defendants  authorized 
plaintiff  to  sell  certain  real  estate  for  them  at  any  time  within 
a  year,  the  contract  being  supported  by  a  valuable  considera- 
tion, and  agreed  to  pay  a  commission  if  a  sale  should  be  effected 


76  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

in  any  way  during  that  time,  and  the  land  was  sold  by  the 
defendants  within  the  year,  plaintiff  to  recover  a  commission 
need  not  show  that  he  produced  or  could  have  produced  a  pur- 
chaser.    Crane  v.  McCormick,  92  Cal.  176,  28  P.  222. 

The  owner  of  property,  after  negotiating  with  J  with  refer- 
ence to  a  sale,  gave  plaintiff  a  written  authority  to  sell  the 
property  for  a  specified  price,  and  plaintiff  then  negotiated 
with  J,  Avho  made  an  offer  of  a  less  sum,  which  was  rejected 
by  the  owner,  thereafter  the  owner  revoked  the  authority,  and 
subsequently,  in  pursuance  of  the  negotiations  between  him 
and  J,  sold  the  property  for  the  price  fixed  in  plantiff's  au- 
thority. Held,  that  in  the  absence  of  any  fraud  or  bad  faith, 
plaintiff  was  not  entitled  to  recover  a  commission.  Cards  v. 
Perth,  100  N.  Y.  S.  1043,  115  App.  Div.  568,  103  N.  Y.  S. 
1121;  Newton  v.  Conness  (Tex.  Civ.  App.  '08),  106  S.  W. 
892.  The  owner  of  land  may  ^ell  the  same  himself,  although 
he  has  placed  it  in  the  hands  of  a  broker  for  sale,  and  the 
most  the  broker  can  claim  is  a  commission  on  the  sale.  Woolf 
V.  Sullivan,  224  111.  509,  79  N.  E.  646. 

"Where  an  owner  of  real  estate  which  he  has  listed  with  an 
agent  for  sale  for  a  definite  price,  sells  the  same  unaided  to 
one  ostensibly  the  purchaser  but  really  acting  for  another, 
who  was  induced  to  purchase  it  by  the  efforts  of  the  agent,  but 
the  owner  acted  in  good  faith  and  in  ignorance  of  these  efforts, 
and  sold  for  a  consideration  less  than  that  given  to  the  agent, 
he  is  not,  there  being  no  exclusive  agency,  liable  for  the  com- 
missions agreed  to  be  paid  to  the  agent  for  the  production  of 
a  purchaser  ready,  able  and  willing  to  pay  what  the  owner 
demanded.  Quist  v.  Goodfcllow,  99  ]\rinn.  509,  110  N.  W.  65. 
(Note. — In  that  State  the  doctrine  of  the  procuring  cause  of  the 
sale  is  not  in  its  fullest  extent  recognized,  and,  in  the  absence 
of  an  exclusive  right  of  sale,  to  entitle  a  broker  to  a  commission 
it  must  appear  that  the  owner  knew,  or  from  the  circumstances 
ought  to  have  known,  that  the  broker  was  instrumental  in  in- 
ducing the  purchaser  to  enter  into  the  contract.) 

An  owner  listing  his  property  for  sale  at  a  fixed  price  with 
a  real  estate  broker,  with  knowledge  that  the  latter  on  pro- 
curing a  purchaser  will  charge  a  commission,  is  liable  for  the 
commission  when  the  broker  procures  a  customer  to  whom  a 


THE   CONTRACT   OF   AGENCY.  77 

sale  is  made  at  the  price  fixed,  Gault  v.  Bradshaw,  48  Wash. 
364,  93  P.  534.  A  broker  was  employed  to  procure  a  pur- 
chaser for  a  farm  within  a  specified  time  at  a  price  which  should 
net  the  owner  $11,000  and  the  broker  $875,  or  such  less  sum 
as  should  be  satisfactory  to  the  broker's  a»ent  having  charge 
of  the  transaction ;  the  owner  sold  the  premises  to  a  purchaser 
procured  by  the  agent  of  the  broker  for  $11,000,  and  the  pur- 
chaser paid  the  agent  $100  for  commissions.  Held,  that  the 
owner,  if  he  knew  that  the  agent  in  conducting  the  sale  vio- 
lated the  instructions  of  the  broker,  was  liable  to  the  broker 
for  commissions  to  the  extent  of  $875,  on  the  ground  that  he 
was  guilty  of  a  fraud  on  the  broker.  Haven  v.  Tartar,  124  Mo. 
App.  691,  102  S.  W.  21;  Thwing  v.  Clifford,  136  Mass.  482. 
Although  the  owner  of  property  may,  after  authorizing  the 
sale  by  a  broker^  contract  with  a  purchaser  by  himself  alone, 
without  rendering  himself  liable  to  the  broker  for  a  commis- 
sion, he  is  not  relieved  of  such  obligation  if  he  sells  to  a  pur- 
chaser found  and  stimulated  to  make  the  purchase  by  the  ef- 
forts of  the  broker,  even  though  he  has  no  actual  knowledge 
that  the  broker  has  been  the  procuring  cause,  provided  the 
broker  has  not,  in  the  meantime,  abandoned  his  undertaking. 
Sechrist  v.  Atkinson,  31  App,   (D.  C.)   1. 

Sec.  43.     Covenants. 

If  an  agent  in  selling  land  adds  covenants  not  authorized  by 
his  authority,  the  purchaser  may  enforce  so  much  of  the  con- 
tract as  conforms  to  the  authority,  or  claim  a  revision  of  the 
whole,  if  the  principal  will  not  execute  a  conveyance.  Venada 
v,  Hopkins,  1  J.  J,  Marsh  (Ky.),  285,  293.  An  agent  who 
effects  a  sale  of  his  principal's  land^;,  and  enters  into  a  cove- 
nant to  convey  and  assure  the  land  to  the  purchaser,  is  re- 
sponsible to  such  purchaser  under  such  covenant.  Harper  v, 
Hampton,  1  Harr.  &  J.  (Md.)  622.     See  also  Sec.  76a. 

The  great  preponderance  of  authority  now  is,  that  a  power, 
without  restriction,  to  sell  and  convey  real  estate,  gives  au- 
thority to  the  agent  to  deliver  deeds,  with  general  warranty, 
binding  on  the  principal  where,  under  the  circumstances,  this 
is  the  common  and  usual  mode  of  conveying,  LeRoy  v.  Beard, 
8  How.  (U.  S.)  451;  Peters  v,  Farnsivorth,  15  Vt.  155;  Venada 


78  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

V.  Hopkins,  1  J.  J.  Marsh  (Ky.),  293;  Taggart  v.  Stanberry, 
2  McLean  (U.  S.),  543;  Schnltz  v.  Griffin,  8  N.  Y.  St.  332, 
24  N.  E.  480.  Sec.  417.  (See  Sec.  418  for  authorities  qualify- 
ing this  doctrine.) 

An  agent  acting  under  parol  authority  only  can  not  bind  his 
principal  by  a  written  covenant,  under  seal,  signed  with  the 
name  of  such  principal ;  such  an  instrument  is  not,  in  any 
sense,  the  deed  of  the  principal  unless  delivered  by  him.  Har- 
shaw  V.  McKesson,  65  N.  C.  688. 

An  owner  of  real  estate  employing  a  broker  to  procure  a 
purchaser.  Held,  not  required  to  inform  the  broker  of  the 
existence  of  restrictive  covenants  in  the  chain  of  title.  Ranger 
V.  Leo,  121  N.  Y.  S.  328. 

Sec.  44.    Conditional  contracts. 

Where  plaintiff  in  an  action,  .o  recover  commissions  for  pro- 
curing a  purchaser  for  real  estate  proves  the  execution  of  the 
contract  of  jnirchase,  which  defendant  claims  was  signed  con- 
ditionally, the  burden  of  proving  such  defense  is  on  the  de- 
fendant.    Folinshce  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293. 

Sec.  45.  Condition  precedent  to  the  contract  of  sale  taking 
effect. 

A  vendor  may,  if  he  is  doubtful  of  the  proposed  vendee-'s 
ability  to  carry  out  his  contract  of  purchase,  accept  the  con- 
tract conditionally,,  and  agree  to  sell,  provided  the  purchaser 
proves  able  to  perform  its  conditions.  Flynn  v.  Jordal,  124 
Iowa,  457,  100  N.  W.  326.     See  also  Sees.  54,  65, '182. 

An  agreement  providing  for  the  sale  and  purchase  of  real 
estate,  which  stipulates  that  the  contract  shall  be  made  at  a 
specified  time  and  place,  that  the  commission  to  be  paid  to  the 
broker  for  procuring  the  purchaser  shall  be  paid  on  "closing 
of  title,"  fixes  the  time  when  the  commission  shall  be  payable; 
but  the  actual  closing  of  the  title  is  not  a  condition  precedent 
to  a  recovery  of  the  commission,  and  the  broker,  on  the  owner 
refusing  to  complete  the  sale,  may  recover  his  commission. 
Meltzer  v.  Stray ss,  113  N.  Y.  S.  583,  61  Misc.  250. 

Where  a  principal,  after  hiring  a  broker  to  effect  a  loan, 
refused  to  accept  it  after  it  was  arranged,  the  broker  was  ex- 


THE  CONTRACT  OP  AGENCY,  79 

cused  from  bringing  the  intending  lender  into  the  principal's 
presence,  or  furnishing  him  with  the  lender's  name,  as  a  con- 
dition precedent  to  his  right  to  compensation,  Morrison  v. 
Tuska,  113  N.  Y.  S.  611. 

Sec.  46.    Death,  and  its  effect  on  contracts. 

An  agency  may  be  terminated  by  the  death  of  the  principal. 
Cr&we  V.  Trickey,  204  U.  S.  228,  affirming  71  P.  (Ariz.)  965; 
Crowe  V.  Harmon,  204  U.  S.  241,  affirming  71  P.  (Ariz.)  1125; 
Kyle  V.  Gaff,  105  Mo.  App.  672,  78  S.  W.  1047;  Shisler's  Est., 
2  Pa.  Dist.  Ct.  588. 

In  an  action  by  a  broker  for  his  commissions  in  negotiating 
an  exchange  of  properties,  reference  in  a  single  letter  by  one 
of  the  parties  to  the  trade  to  the  other,  indicating  that  the 
proposition  had  been  submitted  to  him  by  plaintiff,  and  the 
testimony  of  the  other  party  tiat  it  was  through  plaintiff  that 
he  came  to  know  the  former,  and  that  he  had  the  property  in 
question  to  trade,  are  not  sufficient  to  show  plaintiff's  employ- 
ment by  the  party  writing  the  letter,  where  it  does  not  appear 
that  any  demand  for  commissions  was  made  by  the  plaintiff  un- 
til the  party's  death,  though  he  lived  for  some  months  after- 
ward. Ehrenrotk  v.  Putnam  (Tex.  Civ,  App.  '00),  55  S.  W. 
190. 

Sec.  47.    Approval  of  principal. 

One  employed  to  sell  land  at  an  agreed  price  and  who  receives 
in  part  payment  land  of  a  certain  character  within  a  speci- 
fied locality,  can  not  recover  commissions  where  the  owner  re- 
fuses to  consummate  the  trade,  if  the  contract  of  employment 
provided  that  the  sale  should  })e  subject  to  the  owner's  ap- 
proval. Goin  V.  Hess,  102  Iowa,  140,  71  N.  W.  218;  Denis  v. 
Tilton,  120  La.  226,  45  S.  112;  Slatjback  v.  Wetzel  (Mo.  App. 
'09),  123  S.  W.  598, 

If  a  broker  employed  to  purchase  an  estate  buys  it  for  him- 
self, it  is  necessary,  in  order  to  unfold  the  transaction  and 
render  him  liable  to  account,  that  the  agency  of  the  broker  for 
the  principal  be  approved.  Lazarus  v.  Sands,  33  N.  Y.  S.  855, 
12  Misc.  575,  27  N.  Y.  S.  885,  7  Misc.  282.  Where  the  con- 
tract of  sale  was  to  be  approved  by  the  owner,  an  instruction 


80  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

that  plaintiff  was  entitled  to  commissions  if  he  found  a  pur- 
chaser, though  defendant  refused  to  carry  out  the  trade,  was 
erroneous.     Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218. 

Sec.  48.    Abbreviations. 

Where  the  abbreviations  used  in  a  broker's  authorization  were 
such  that  parties  familiar  with  land  descriptions  could  under- 
stand them  easily,  their  use  did  not  render  the  authority  void 
for  uncertainty.    Meline  v.  Buffino,  129  Cal.  514,  62  P.  93. 


CHAPTER  IX. 

SECTION.  SECTION. 

49.  Ambiguous    contract.  53.  Credit. 

50.  Banks.  54.  Contingency. 

51.  Consent.  55.  Changes  in  contracts. 

52.  Caveat   emptor.  56.  Counter    proposition. 

Sec.  49.    Ambiguous  contracts. 

Where  letters  from  the  owner  of  land  to  a  real  estate  broker 
named  terms  of  sale,  and  told  the  broker  if  he  could  effect 
sales  the  owner  would  be  glad,  but  that  the  right  to  refuse 
offers  was  reserved,  that  the  broker  might  wire  if  he  found  a 
customer  at  the  price  named,  and  he  could  have  the  land  and 
the  broker  his  commission,  it  was  held  that  where  the  language 
was  ambiguous,  the  ambiguity  must  be  taken  most  strongly 
against  the  owner,  especially  where  third  persons  have  acted 
thereunder,  and  the  broker  having  found  persons  ready  to  pur- 
chase on  the  terms  named,  was  entitled  to  his  commissions,  al- 
though the  owner  refused  to  sell.  Hopivood  v.  Corbin,  63  Iowa, 
218,  18  N.  W.  911. 

Sec.  50.    Banks. 

The  cashier  of  a  bank  having  implied  authority,  as  its  execu- 
tive officer,  to  contract  for  the  disposal  of  lands  acquired  by 
the  bank  in  the  collection  of  its  credits,  will  bind  the  bank  by 
his  contract  to  pay  commissions  for  the  disposal  of  lands  placed 
in  the  hands  of  a  broker,  but  which  through  mistake  in  identity 
the  bank  does  not  own.  Arnold  v.  Nat.  Bk.  of  Waupaca,  126 
Wis.  362,  105  X.  W.  828,  3  L.  R.  A.  (N.  S.)  580. 

Where  a  real  estate  agent  furnished  a  purchaser  who  was  able 
and  willing  to  buy,  and  who  entered  into  a  contract  providing 
that  he  should  deposit  $500,  which  should  be  returned  if  any 
defect  existed  in  the  title  which  the  seller  could  not  cure  in 
thirty   days,   and  the   contract   failed  of   consummation   solely 

81 


82  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

because  there  was  such  a  defect,  the  fact  that  the  check  which 
was  deposited  according  to  the  contract  was  on  a  bank  from 
which  the  prospective  buyer  withdrew  his  funds,  and  the  check 
was  afterward  refused,  did  not  preclude  the  agent  from  recover- 
ing his  commissions.  Perkins  v.  Kimherlin,  110  Mo.  App.  661, 
85  S.  W.  630. 

Where  a  bank  agrees  to  pay  a  real  estate  broker  a  commis- 
sion on  the  sale  of  lands,  it  can  not  set  up  as  a  defense  that, 
under  the  laws  of  the  State  in  which  the  land  is  situated,  a 
bank  is  prohibited  from  dealing  in  real  estate,  where  it  has 
availed  itself  of  the  benefits  of  the  sale.  Church  v.  Johnson, 
93  Iowa,  544,  61  N.  W.  916. 

Sec.  51.     Consent. 

If  an  agent  employed  to  sell  property  buys  it  for  himself, 
in  an  action  for  compensation"  the  burden  of  proving  that  the 
principal  had  knowledge  of  the  facts  and  consented  to  the  sale 
rests  on  the  agent.  Jansen  v.  Williams,  36  Neb.  869,  55  N.  W. 
279,  20  L.  K.  A.  207;  Grant  v.  Hardy,  33  Wis.  668. 

If  a  broker  is  employed  as  the  agent  of  either  party  so  that 
that  party  relies  on  him  to  secure  the  best  bargain  possible, 
then  the  general  rule  forbidding  double  employment  applies, 
and  the  broker  can  not  recover  commissions  from  both  parties 
to  the  transaction.  Bates  v.  Copeland,  McArthur  &  M.  (D.  C.) 
50;  Lloyd  V.  Colston,  5  Bush  (Ky.),  587;  Raisin  v.  Clark,  41 
Md.  158;  Follmisbee  v.  O'Reilly,  135  Mass.  80;  Harwitz  v. 
Pepper,  128  Mich.  688,  87  N.  W.  1034;  Friar  v.  Smith,  120 
]\Iich,  411,  79  N.  W.  633,  46  L.  R.  A.  229;  Leathers  v.  Canfield, 
117  Mich.  277,  75  N.  W.  612,  45  L.  R.  A.  33;  Scribner  v.  Collier, 
40  Mich.  375 ;  Dartt  v.  Somnesym,  ^&  Minn.  55,  90  N.  W.  115 ; 
De  Steiger  v.  Hollington,  17  Mo,  App.  382;  Pugsley  v.  Murray, 
4  E.  D.  Smith  (N.  Y.),  245;  Bunlap  v.  Richards,  2  E.  D.  Smith 
(N.  Y.),  181;  Watkins  v.  Consell,  1  E.  D.  Smith  (N.  Y.),  65; 
Brierly  v.  Connelly,  64  N.  Y.  S.  9,  31  Misc.  268;  Norman  v. 
Reuther,  54  N.  Y.  S.  152,  25  Misc.  161;  Linderman  v.  McKenna, 
20  Pa.  Super.  Ct.  409 ;  Meyer  v.  Uanchett.  43  Wis.  246. 

Unless  they  consent  to  his  acting  for  both,  either  expressly 
or  by  clear  implication.  Alexander  v.  N.  W.  Chr.  Univ.,  57  Ind. 
466 ;  Scribner  v.  Collier,  40  Miot.  375 ;  De  Steiger  v,  Hollington, 


THE  CONTRACT  OP  AGENCY.  83 

17  Mo.  App.  382;  Rowe  v.  Stephens,  53  N.  Y.  621;  Geerij  v. 
Pollock,  44  N.  Y.  S.  673,  16  App.  Div.  321;  Abel  v.  Disbrow, 
44  N.  Y.  S.  573,  15  App.  Div.  r)S6;TAinsing  v.  Bliss,  33  N.  Y.  S. 
310,  86  Hun,  205;  Dunlap  v.  Richards,  2  E.  D.  Smith  (N.  Y.), 
181;  Whiting  v.  Saunders,  49  N.  Y.  S.  1016,  22  Misc.  539; 
Haviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372 ;  Lamb  v.  Baxter, 
130  N.  C.  67,  40  S.  E.  850;  Maxivell  v.  West,  23  Pa.  Co.  Ct.  302; 
Meyer  v.  Hanchett,  43  Wis.  246;  Cass  v.  Tolbert  (Tex.  Civ. 
App.  '08),  112  S.  W.  1077. 

The  fact  that  a  broker  employed  to  effect  a  sale  is  a  director 
in  the  corporation  which  he  procures  to  buy  the  property,  does 
not  prevent  him  from  recovering  a  commission,  where  the  per- 
son who  practically  owns  the  capital  stock  of  the  corporation 
consented  to  the  transaction,  the  question  of  fair  dealing  being 
submitted  to  the  jury,  Goldshear  v.  Barrow,  85  N.  Y.  S.  395, 
42  ]Misc.  198.  Mere  consent  by  a  person  to  the  rendition  by 
a  real  estate  agent  of  unsolicited  services  which  result  in  a 
sale  of  the  property,  does  not.  of  itself,  create  a  contract  or 
entitle  the  broker  to  recover  compensation  under  an  implied 
promise  of  remuneration  for  such  voluntary  services.  Viley  v. 
Pettit,  96  Ky.  576,  16  Ky.  L.  R.  650,  29  S.  W.  438;  Weinhuse 
V.  Cronin,  68  Conn.  250,  36  A.  45.  Contra,  Kinder  v.  Pope,  106 
Mo.  App.  536,  80  S.  W.  315. 

T  and  W  entered  into  a  contract  with  0  to  sell  real  estate  for 
him  within  a  certain  time,  on  certain  commissions;  before  the 
expiration  of  the  time  0  requested  the  return  of  the  agreement ; 
W  offered  to  purchase  the  land  himself  rather  than  lose  the 
sale;  the  relation  between  the  parties  was  that  of  principal  and 
agent,  and  could  not  be  changed  without  O's  consent  into  that 
of  vendor  and  purchaser.     Tower  v.  O'Neil,  66  Pa.  St.  332. 


Sec.  52.    Caveat  emptor. 

A  purchaser  of  real  estate  is  entitled  to  rely  on  the  repre- 
sentakon  of  the  agent  for  the  sale  thereof  as  to  its  location, 
and  is  not  bound  by  the  doctrine  of  caveat  emptor  to  make 
further  inquirii?s  as  to  its  boundaries.  Roberts  v.  Holliday, 
10  S.  D.  576,  74  N.  W.  1034 ;  Selby  v.  Matson,  114  N.  W.  609, 
137  Iowa  97.    Compare  Sec.  348. 


84  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  53.    Credit. 

An  agent  to  sell  land  on  credit  has  no  implied  authority  to  re- 
ceive payment  therefor,  nor  to  receive  payment  before  due,  nor 
in  anything  but  money.  Mann  v.  Robinson,  19  W.  Va.  49.  Com- 
pare Sec.  335.  A  broker  employed  to  sell  real  estate  has  no 
authority  to  bind  his  principal  by  a  contract  to  sell  on  credit 
unless  expressly  authorized.  Stat  en  v.  Hammer,  121  Iowa,  499, 
96  N.  W.  964;  Smith  v.  McCann,  205  Pa.  St.  57,  54  A.  498; 
Edwards  v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W.  48;  Bundle 
V.  Cutting,  18  Colo.  337,  32  P.  994 ;  Gilbert  v.  Baxter,  71  Iowa, 
327,  32  N.  W.  364;  Wanless  v.  McCanless,  38  Iowa,  20.  And 
to  sell  on  credit,  a  sale  for  the  amount  in  cash  is  unauthorized. 
Jackson  v.  Marohn  (S.  D.  Sup.  '09),  119  N.  W.  988. 

Where  land  is  entrusted  to  real  estate  agents  to  sell  and  col- 
lect the  purchase  money,  the  purchaser  is  entitled  to  credit  for 
payment  to  an  agent  of  the  real  estate  agents,  although  made 
after  he  was  discharged,  he  having  been  held  out  as  authorized 
to  receive  payments  due  on  contracts,  and  notice  of  the  with- 
drawal of  his  authority  not  having  been  given  to  the  purchaser. 
Meeker  v.  Manning,  162  111.  203,  44  N.  E.  397.    See  also  Sec.  335. 

Defendant  made  plaintiff  his  agent  for  the  sale  of  certain 
lands  for  cash,  all  the  price  above  a  certain  amount  to  belong 
to  plaintiff  as  his  compensation;  plaintiff  found  a  purchaser 
willing  to  pay  such  sum  in  cash  and  the  excess  to  plaintiff  on 
time.  Held,  that  such  sale  complied  with  the  terms  of  the 
agreement.  Van  Garder  v.  Sherman,  81  Iowa,  403,  46  N.  W. 
1087. 

Sec.  54.    Contingency. 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  evidence  that  the  act  of  the  defendant  prevented  the  hap- 
pening of  the  contingency  on  which  payment  was  to  be  made  was 
inadmissible,  the  excuse  not  being  pleaded  by  the  plaintiff. 
Turner  v.  Lane,  93  N.  Y.  S,  1083,  47  Misc.  387.  A  broker  may  by 
special  agreement  with  his  principal  so  contract  as  to  make  his 
compensation  depend  upon  a  contingency  which  his  efforts  can 
not  control,  even  though  it  relates  to  the  acts  of  his  principal. 
Hind  V.  Henry,  36  N.  J.  L.  328;  Lassen  v.  Bayless,  125  Fed. 
744,  60  C.  C.  A.  512 ;  Berry  v.  Tweed,  93  Iowa,  296,  61  N.  W. 


THE  CONTRACT  OF  AGENCY.  85 

858;  Stewart  v.  Fowler,  37  Kan.  677,  15  P.  918;  Flower  v. 
Davidson,  44  Minn.  46,  46  N.  W.  308;  /Sf.  E.  Crowley  Co.  v. 
Myers,  69  N.  J.  L.  245,  55  A.  305;  Brown  v.  Grossman,  65  N. 
Y.  S.  1126,  53  App.  Div.  640;  Hodgkins  v.  Mead,  8  N.  Y.  S.  854. 
See  also  Sees.  40,  45,  65. 

A  written  agreement,  after  reciting  that  defendant  had  con- 
tracted to  sell  a  farm  to  one  H,  "contingent  on  the  allowance 
of  a  certain  pension  to  H,"  the  latter 's  ability  to  pay  the  price 
being  entirely  dependent  upon  the  allowance  of  said  pension 
claim,  provided  that,  in  case  the  sale  should  be  "perfected  by 
the  payment  of  said  purchase  money"  to  defendant,  "in  the 
event  said  pension  is  allowed,"  defendant  should  pay  a  speci- 
fied commission  to  plaintiff,  who  had  helped  bring  about  the 
contingent  sale,  but  if  the  "pension  should  not  be  allowed  and 
paid  over  to  defendant  plaintiff  should  receive  nothing;  the 
price  to  be  paid  for  the  farm  was  $12,000  and  the  pension 
claim  was  for  $9,500,  of  which  H  received  $6,000,  but  never 
paid  more  than  $1,000  to  defendant.  Held,  that  plaintiff  was 
not  entitled  to  a  commission.  Cohh  v.  Kenner  (Ch.  App.  Tenn.), 
S.  W.  277. 

Sec.  55.    Changes  in  contracts. 

A  contract  for  the  sale  of  lands  was  executed  by  the  owner 
and  left  with  his  agent  for  the  sale  of  such  land  for  delivery 
to  the  purchaser,  the  agent  altered  the  instrument  by  substi- 
tuting the  name  of  another  person,  and  changed  both  the 
consideration  and  the  rate  of  interest,  and  delivered  it  tp  such 
other  person.  Held,  that  the  contract  so  delivered  was  not 
the  contract  of  the  owner.  Ballou  v.  Bergenson,  9  N.  D.  285, 
83  N.  W.  10.     See  also  Sec.  293. 

The  right  of  plaintiff,  a  real  estate  agent,  to  recover  on  his 
contract  for  the  sale  of  the  defendant's  interest  in  lands  for 
a  certain  sum  is  not  affected  by  a  change,  without  defendant's 
knowledge,  in  the  agreement  relative  to  the  purchase  of  the 
other  interests.  Good  v.  Smith,  44  Ore.  578,  76  P.  354.  Where 
a  letter  to  a  real  estate  broker  authorized  the  sale  of  certain 
property  for  $30,000,  subject  to  change  at  any  time,  but  no 
change  was  made  or  suggested  until  after  a  sale  was  nego- 
tiated, a  subsequent  change  and  a  refusal  of  the  owner  to  com- 


86  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

plete  the  sale  at  the  price  first  named  was  ineffective  to  bar 
the  broker's  right  to  commissions.  Warren  Com.  &  Inv.  Co. 
V.  Hull,  R.  E.  Co.,  120  Mo.  App.  432,  96  S.  W.  1038;  Millan 
V.  Porter,  31  Mo.^  App.  563.  See  also  Sec.  454.  Simmins  v. 
Oneth  (Mo.  App.   '10),  124  S.  W.  534. 

Sec.  56.     Counter    Proposition. 

A  broker  employed  to  procure  a  purchaser  procured  one 
who  offered  a  specific  sum,  which  the  owner  rejected;  the 
owner  made  a  counter  proposition  which  the  purchaser  re- 
jected; thereafter  the  purchaser  offered  to  accept  the  counter- 
proposition,  but  the  owner  then  refused  to  sell.  Held,  that 
the  broker  was  not  entitled  to  his  commissions,  for,  on  the 
owner  rejecting  the  purchaser's  offer  and  making  a  counter 
offer,  which  the  purchaser  refused,  the  matter  was  at  an  end, 
and  no  subsequent  acceptance  of  the  counter-offer  could  re- 
vive it.  Compare  Sees.  72,  173.  Bailey  v.  Moorhead,  122  Mo. 
App.  268,  99  S.  W.  39;  Talcott  v.  Mastin,  20  Colo.  App.  488, 
79  Pac.  973.  Where  an  alleged  purchaser  replied  to  the  offer 
made  with  a  counter-proposition  that  could  not  be  construed 
as  an  acceptance  of  any  of  the  terms  of  sale  made  by  the 
owner  the  real  estate  agents  employed  to  procure  a  purchaser 
were  not  entitled  to  any  commissions.  Winters  v.  Portwood 
(Tex.  Civ.  App.   '08),  109  S.  W.  388. 


CHAPTER  X. 

SECTION.  SECTION. 

67.     Deeds.  58.     Deeds,     their     execution     by 

agents. 

Sec.  57.    Deeds. 

Testimony  that  a  deed  was  tendered  to  the  principal  "in 
pursuance  of  an  agreement  between"  the  parties  is'  sufficient, 
prima  facie,  to  sustain  a  finding  that  it  was  delivered  within 
thirty  days.     Beebc  v.  Roberts,  3  E.  D.  Smith   (N.  Y."),  194. 

Mere  insolvency  of  the  purchaser  does  not  defeat  the  broker's 
right  to  a  commission,  where  the  sale  contemplates  being  se- 
cured by  a  bond  and  deed  of  trust,  which  the  purchaser  is 
prepared  to  deliver.  Ross  v.  Fickling,  11  App.  Cas.  (D.  C.) 
442.  A  petition  which  alleges  that  the  sale  failed  because 
of  an  unsatisfied  deed  of  trust  on  the  property  which  the  defend- 
ant had  failed  to  release  or  have  cancelled,  is  not  defective 
in  failing  to  allege  that  the  deed  was  a  lien  on  the  prop- 
erty, cr  that  defendant  refused  to  consummate  the  sale.  Ger- 
hart  V.  Peck,  42  Mo.  App.  644. 

A  deed  executed  by  the  principal  to  the  purchaser  after 
the  commencement  of  the  suit,  is  inadmissible  to  show  the 
principal's  ratification  of  the  agent's  contract.  Gelott  v.  Ridge, 
117  Mo.  553,  23  S.  W.  882.  The  defendant  having  assented 
to  the  t?rms  of  the  written  agreement  to  exchange  the  agree- 
ment and  deed  of  conveyance  were  competent  evidence  of  the 
sale  and  the  consideration  thereof.  Hewitt  v.  Brown,  21  Minn. 
163;  Folinsbee  v.  Sawyer,  157  N.  Y.  196,  51  N.  E.  994;  Levy 
V.  Crogan,  16  Daly,  137,  9  N.  Y.  S.  534;  Cannon  v.  Castleman, 
24  Ind.  App.  188,  55  N.  E.  111. 

The  defendant  was  the  owner  of  a  parcel  of  real  estate 
which  he  authorized  the  plaintiff  to  sell  for  a  certain  sum; 
nothing  was  said  relative  to  the  kind  of  deed  to  be  given; 
the  broker  found  a  purchaser  who  refused  to  complete  the 

87 


88  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

transaction  unless  the  defendant  would  give  him  a  warranty 
deed,  notwithstanding  the  defendant  had  a  good  title  to  the 
property;  the  defendant  would- not  give  a  warranty  deed,  but 
offered  to  give  a  quit-claim  deed,  in  the  usual  form,  with  spe- 
cial covenants,  and  so  the  sale  was  not  executed.  Held,  that 
the  broker  was  not  entitled  to  commissions.  Garcelon  v.  Tib- 
betts,  84  Me.  148,  24  A.  797. 

In  an  action  for  a  broker's  commissions  for  negotiating  a 
purchase  which  defendant  refused  to  consummate,  a  deed,  and 
a  receipt,  purporting  to  have  been  "signed  and  acknowledged 
by  the  owner,  and  proof  of  a  tender,  were  admissible  with 
other  proof,  as  tending  to  show  that  defendant  could  have 
obtained  the  property  at  his  offer  had  he  desired  to  do  so, 
where  •  no  objection  was  raised  to  their  form  or  genuineness. 
Hanna  v.  Espella,  148  Ala.  313,  42  S.  443. 

A  loan  agent  acting  for  B  secured  the  latter 's  note  and 
mortgage,  but  failed  to  effect  the  loan,  and,  while  still  hold- 
ing the  note  and  mortgage,  which  had  been  placed  on  record, 
bought  the  land  under  a  sheriff's  deed.  Held,  that  good  faith 
required  the  agent  to  secure  the  release  of  the  mortgage  be- 
fore taking  the  deed,  and  that  having  failed  to  do  so,  the 
deed  would  be  set  aside,  Smeltzer  v.  Lombard,  57  Iowa,  294. 
It  requires  an  instrument  under  seal  to  ratify  the  unauthor- 
ized deed  of  an  agent.  Spofford  v.  Hobbs,  29  Me.  148;  Drum- 
right  V.  Philpot,  16  Ga.  424;  Reese  v.  Medloch,  27  Tex.  120. 

Deed  of  a  guardian  executed  to  defraud  wards  set  aside  and 
mortgage  by  grantee  held  null  and  void.  Dormitzer  v.  German 
Sav.  &  Loan  Co.,  23  Wash.  132,  62  P.  862.  Deed  improperly 
secured  by  agent  set  aside.  Clark  v.  Bird,  72  N.  Y.  S.  769, 
66  App.  Div.  284.  Where  a  brokerage  contract  provided  that 
the  broker's  authority  to  sell  defendant's  land  should  con- 
tinue until  withdrawn  in  writing,  and  defendant  sold  the  land 
and  gave  a  deed  to  the  purchaser,  the  deed  was  not  such  a 
withdrawal  of  authority  before  such  sale  as  would  put  an  end 
to  the  contract  by  which  defendant  agreed  to  pay  a  commis- 
sion if  she  sold  the  property  herself  during  the  life  of  the 
contract.  Kimmel  v.  Skelly,  130  Cal.  555,  62  P.  1067.  Where 
a  broker's  authorization  to  sell  land  was  in  force  when  the 
sale  took  place  his  rights  were  not  affected  by  the  fact  that 


THE  CONTRACT  OF  AGENCY.  89 

the  deed  did  not  pass  until  later.  Hull  v.  McCoy,  1  Cal.  App. 
159,  81  P.  1015. 

In  a  suit  against  a  real  estate  broker  and  lawyer,  by  a  for- 
mer customer  or  client,  to  vacate  certain  deeds  procured  by 
him  to  be  executed  by  her  in  his  interest,  and  for  the  can- 
cellation of  an  alleged  compromise  agreement  confirming  such 
deeds,  it  was  held  that,  on  a  review  of  the  evidence  showing, 
among  other  things,  that  the  defendant  had  purchased  one 
interest  from  the  complainant  for  $1,075,  worth  $2,500,  and 
that  shortly  prior  thereto  he  had  collected  over  $800  for  her, 
for  which  he  failed  to  account,  that  whether,  in  view  of  the 
fiduciary  relations  of  the  defendant  to  the  complainant,  the 
burden  was  on  him  to  show  the  validity  of  the  transactions, 
the  testimony,  as  a  whole,  was  sufficient  to  justify  vacating 
the  deeds  and  cancelling  the  agreement.  Holtzman  v.  Linton, 
27  App.   (D.  C.)   241. 

Where  an  agent  lawfully  authorized  to  contract  to  sell  real 
estate  has  attempted  to  convey  the  same  by  deed  under  a  de- 
fective power  of  attorney,  the  deed  will  be  treated  in  equity 
as  a  valid  contract  for  the  sale  thereof.  Hersey  v.  Lambert, 
50  Minn.  373,  52  N.  W.  963.     See  also  See.  592. 

An  authorization  to  an  agent  to  sell  real  estate  for  $8,000, 
$3,000  cash,  entitles  him  to  the  agreed  compensation  if  he  se- 
cures a  purchaser  bound  to  the  agreed  terms,  as  the  $3,000 
cash  means  only  the  payment  of  such  sum  on  delivery  of  a 
deed  by  the  principal.  Goss  v.  Broom,  31  ]\Iinn.  484.  See 
also  Sees.  410,  410a.  An  agent  acting  under  parol  authority 
can  not  bind  his  principal  by  a  written  covenant  under  seal, 
signed  with  the  name  of  such  principal.  Such  an  instrument 
is  not,  in  any  sense,  the  deed  of  the  principal  unless  deliv- 
ered by  him.     Harshaw  v.  McKesson,  65  N.  C.  688. 

Sec.  58.    Deeds,  their  execution  by  agents. 

One  who  has  authority  from  another  to  execute  a  deed  or 
other  instrument  under  seal,  should  do  it  in  the  name  of  that 
other,  and  not  in  his  own  name,  even  as  agent.  Rohhins  v. 
Butler,  24  111.  428.  If  an  agent  sign  and  seal  a  deed  in  his 
own  name,  it  does  not  bind  the  principal,  though  in  the  body 
of  the  deed  it  is  stated  to  be  made  by  the  agent  in  behalf  of 


90  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

his  principal.  Bellas  v.  Hayes,  5  Serg.  &  R.  (Pa.)  427;  Fitch 
on  Real  Est.  Ag.,  p.  97,  citing  Toivnsend  v.  Huhhard,  4  Hill 
(N.  Y.),  351;  Townsend  v.  Corning,  23  Wend.  (N.  Y.)  435. 
A  deed  which  ran,  "Know  all  men  by  these  presents  that 
I,  A.  B.,  as  agent  for  C.  D.,  do  hereby  grant,  sell  and  convey," 
etc.,  and  signed  "A.  B.  for  C.  D."  was  held  to  be  the  deed 
of  "A.  B."  and  not  "C.  D."  Story  on  Ag.  Sec.  154.  Where 
an  agent  executed  a  deed  in  his  own  name,  although  he  cove- 
nanted "for  and  on  behalf"  of  his  principal,  he  was  held 
personally  bound,  and  not  his  principal.  Appleton  v.  Binks, 
5  East   (Eng.),  148. 


CHAPTER  XI. 


SECTION, 
59. 

60. 
61. 
62. 
63. 
64. 
65. 


66. 

67. 
68. 


Description  of  property. 

Drunkenness. 

Fixed  price. 

Guardian  of  minor. 

Undivided  interest. 

Interest  of  tenant  in  common. 

Contract  conditional  on  se- 
curing otlier  interests. 

Consolidation  of  interests, 
not  a  sale. 

Payments  in  installments. 

Introduction  of  prospective 
purchaser. 


SKCTIOX. 

69.  Indirect    acts    ineffectual    to 

establish    contractual    rela- 
tions. 
69a.  Indirect    sale    which    author- 
izes commissions  to  broker. 

70.  Information,     acted     on     by 

broker  not  establishing  con- 
tractual relations. 

71.  Insurance     company,     broker 

obtaining    loan    from,    not 
agent  of. 


Sec.  59.    Description  of  property 

In  a  contract  with  a  real  estate  broker  for  the  sale  of  cer- 
tain property,  the  description,  "My  property,  48  Eldridge 
Court,"  is  suflficiently  definite  to  enable  the  broker  to  recover 
commissions,  the  contract  being  dated  at  Chicago,  where  there 
is  a  number  48  Eldridge  Court,  of  which  the  principal  is  a 
part  owner.  Weaver  v.  Snow,  60  111.  App.  624;  Powers  v. 
Boknslav  (Neb.  Sup.  '09),  120  N.  W.  942;  Schultz  v.  Griffin, 
8  N.  Y.  St.  Rep.  332.  Rev.  121  N.  Y.  294,  24  N.  E.  480.  See 
also  Sec.  428a;  Tilden  v.  Smith  (S.  D.  Sup.  '10),  124  N.  W. 
841.  In  a  petition  for  a  commission  for  finding  a  purchaser 
it  is  not  necessary  to  particularly  describe  the  land.  Mullen 
V.  Bower,  22  Ind.  App.  294,  53  N.  E.  790 ;  McAllister  v.  Walker, 
39  Minn.  535,  41  N.  W.  107. 

A  real  estate  broker  authorized  to  sell  a  tract  of  land  spoken 
of  by  the  owner  as  being  on  the  line  of  a  certain  canal,  has 
no  authority  to  sell  it  by  any  other  description  than  that  by 
which  it  was  purchased  by  the  owner,  and  the  broker's  com- 
missions are  not  earned  where  the  trade  falls  through  because 

91 


92  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

the  contract  made  by  the  broker  with  the  intending  purchaser 
described  the  tract  as  containing  a  stated  number  of  acres 
south  of  the  canal,  whereas  it  was  described  in  the  convey- 
ance to  the  owner  as  being  that  number  of  acres  south  of  the 
center  of  the  canal.  Ward  v.  Lawrence,  79  111.  295;  Scott  v. 
Gage,  16  S.  D.  285,  92  N.  W.  37.    See  also  Sec.  476 

Sec.  60.    Drunkenness  in  its  relation  to  competency  to  make 
a  contract. 

Mere  ex«tement  from  the  use  of  intoxicating  liquors  is  not 
such  drunkenness  as  will  enable  a  party  to  avoid  his  con- 
tract; such  excitement  and  drunkenness  must  be  excessive  and 
absolute,  so  as  to  suspend  the  reason  and  create  impotence  of 
mind  at  the  time  of  entering  into  the  contract;  absolute  drunk- 
enness does  not  mean  complete  'insensibility,  and  the  use  of 
this  phrase  in  the  instruction  does  not  render  it  objectionable. 
Cavender  v.   Waddingham,  5  ]\Io.  App.  457. 

Sec.  61.     Fixed  price. 

Where  the  principal  makes  a  sale  to  a  purchaser  found  by 
the  broker,  having  availed  himself  of  the  broker's  services,  he 
is  liable  for  the  commission,  although  the  sale  is  made  at  a 
lower  price  than  that  originally  proposed  by  him  to  the  broker. 
Crook  V.  Forst,  116  Ala.  395;  22  S.  540;  Williams  v.  Bishop, 
11  Colo.  App.  378,  53  P.  239;  Schegal  v.  Allerton,  65  Conn. 
260,  32  A.  363;  Baker  v.  Murphy,  105  111.  App.  151;  Loehde 
V.  Halsey,  88  111.  App.  452;  McConaughty  v.  Mehannah,  28 
111.  App.  169;  Plant  v.  Thompson,  42  Kan.  664,  22  P.  726; 
Ratts  v.  Shepherd,  37  Kan.  20,  14_R^49(§;  nubacheky.'Haz- 
zard,  83  Minn.  437,  86  N.  W.  426;  McCormack  v.  Henderson, 
100  Mo.  App.  647,  75  S.  W.  171;  Stinde  v.  Bleach,  42  Mo. 
App.  578 ;  Wetzel  v.  Wagoner,  41  Mo.  App.  509 ;  Martin  v. 
Silliman,  53  N.  Y.  615;  Martin  v.  Fegan,  88  N.  Y.  S.  472,  95 
App.  Div.  154;  Levy  v.  Coogan,  16  Daly,  137,  9  N.  Y.  S.  534; 
Chilton  V.  Butler,  1  E.  D.  Smith  (N.  Y.),  150;  Hobls  v.  Ed- 
gar, 51  N.  Y.  S.  1120,  23  Misc.  618 ;  Gold  v.  Serrill,  26  N.  Y. 
S.  5,  6  Misc.  124;  Steinfeld  v.  Strom,  63  N.  Y.  S.  966,  31 
Misc.  167;  Keys  v.  Johnson,  68  Pa.  St.  42;  Oliver  v. 
Katz,  131  Wis.  409,  111  N.  W.  509;  Byrd  v.  Frost  (Tex.  Civ. 


THE  CONTRACT  OF  AGENCY.  93 

App.  '94),  29  S.  W.  46;  Barnes  v.  German  Sav.,  etc.,  Soc, 
21  Wash.  448,  58  P.  569;  Holland  v.  Vinson,  124  Mo.  App. 
417,  101  S.  W.  1131.  Unless  the  right  to  a  commission  is 
made  conditional  upon  a  sale  being  effected  at  the  price  fixed 
in  the  broker's  authority.  Armes  v.  Cameron,  19  D.  C.  435; 
Buhl  V.  Noe,  51  111.  App.  622;  Schwartze  v.  Yearly,  31  Md. 
270 ;  Child  V.  Ptomey,  17  Mont.  502,  43  P.  714j  Briggs  v.  Boive, 
1  Abb.  Dec.  (N.  Y.)  189,  4  Keyes,  ^24.rSteinfeld  v.  Storm,  63 
N.  Y.  S.  966,  31  Iklisc.  167;  Sargent  v.  Story  (Tex.  Civ.  App. 
'01),  61  S.  W.  977;  McArthur  v.  Slosson,  53  Wis.  41,  9  N. 
W.  781.     See  also  Sec.  133. 

A  broker  who  has  the  exclusive  right  for  sixty  days  to  sell 
at  a  fixed  price  certain  real  estate,  can  not  bind  his  prin- 
cipal by  a  contract  in  which  the  time  for  the  completion 
of  the  purchase  and  the  payment  of  the  price  is  extended  thirty 
days  after  the  expiration  of  the  sixty  days.  Smith  v.  Mc- 
Cann,  205  Pa.  57,  54  A.  498.  See  Sec.  14  for  time  beyond 
the  limit  allowed  to  examine  the  title. 

Sec.  62.    Guardian  or  minor. 

Where  in  employing  plaintiff  as  a  real  estate  broker  to  ef- 
fect a  sale  of  land,  defendant  acted  as  the  guardian  of  a  minor 
and  had  no  personal  or  private  interest  in  the  property,  all 
of  which  was  known  to  the  plaintiff,  and  that  he  never  made 
any  contract  to  pay  individually  for  making  the  sale,  defend- 
ant can  not  be  charged  individally  for  a  commission.  Hudson 
V.  Scott,  125  Ala.  172,  28  S.  91;  Groeltz  v.  Armstrong,  125 
Iowa,  39,  99  N.  W.  128. 

A  guardian  by  fraudulent  proceedings  in  court  obtained 
an  order  and  sold  property  inherited  by  his  ward,  and  his 
vendee,  wno  participated  in  the  fraud,  afterwards  mortgaged 
the  property  to  secure  a  large  loan;  the  mortgage  was  made 
through  a  broker,  and  the  mortgagee  testified  that  the  broker 
was  defendant's  agent  for  the  service  of  process  and  for  no 
other  purpose,  and  that  defendant  dealt  with  him  as  with 
other  brokers;  the  broker  passed  on  the  value  of  the  securi- 
ties, fixed  the  terms  of  the  loans,  subject  to  the  mortgagee's 
approval,  looked  after  the  title,  employed  attorneys  to  exam- 
ine the  same,  received  the  money  and  paid  it  to  the  mort- 


94  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

gagors,  and  in  letters  to  the  mortgagee  spoke  of  the  loans 
as  made  "by  us;"  in  negotiating  the  loan  in  question  he  was 
associated  with  a  third  person,  and  attorneys  were  employed 
by  them  who  knew  of  such  fraudulent  probate  proceedings, 
and  that  the  proceedings  were  made  for  the  purpose  of  show- 
ing a  clear  title  to  the  mortgaged  property.  Held,  sufficient 
to  show  that  the  broker  was  the  agent  of  the  mortgagee  as 
to  make  notice  of  the  fraud  to  him  sufficient  notice  to  the 
mortgagee  to  prevent  the  defense  of  good  faith  by  it  to  an 
action  by  the  ward  to  set  aside  such  sale  and  mortgage  as 
fraudulent.  Dormitzer  v.  German  Sav.  d'  Loan  Soc,  23  Wash. 
132,  62  P.  862. 

Sec.  63.    Undivided  interest. 

Where  a  power  of  attorney  authorized  an  agent  "to  grant, 
bargain  and  sell  certain  lands,  or  any  part  or  parcel  there- 
of, for  such  sum  or  price,  on  such  terms  as  to  him  shall  seem 
meet,  and  for  me  and  in  ray  name  to  make,  etc.,  deeds  for 
the  same,  either  with  or  without  covenants  of  M^arranty;"  it 
was  held  that  the  agent  had  authority  to  sell  on  reasonable 
credit,  had  authority  to  receive  payment,  and  a  payment  to 
him  was  a  good  payment  to  the  principal;  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal  he  might" 
include  other  valuable  considerations  besides  money  in  the 
consideration,  and  might  sell  an  undivided  interest  in  the 
property.     Carson  v.  Smith,  5  Minn.  78. 

Sec.  64.     Interest  of  tenant  in  common. 

Defendant  was  tenant  in  common  of  certain  premises  of 
which  he  wished  to  dispose,  and  employed  plaintiif  to  sell  his 
interest  for  him;  plaintiff  attempted  to  negotiate  a  sale  to  de- 
fendant's co-tenant,  but  was  unable  to  get  any  definite  price 
or  terms  from  defendant ;  finally,  at  plaintiff 's  suggestion,  the 
co-tenant  himself  saw  defendant,  and  a  settlement  was  reached 
by  which  defendant  conveyed  the  larger  part  of  the  premises 
to  the  co-tenant,  but  retained  a  small  tract  for  himself  for 
his  own  benefit  and  according  to  his  own  desires.  Held,  that 
the  deal  as  consummated  amounted  to  a  sale  within  the  mean- 
ing of  the   contract  with  plaintiff  for  commissions.     Burden 


THE   CONTRACT   OF   AGENCY.  95 

V.  Briquilet,  125  "Wis.  341,  104  N.  W.  83;  Anderson  v.  Lewis, 
64  W.  Va.  297,  61  S.  E.  160. 

Sec.  65.     Contract  conditional  on  securing  other  interests. 

Where  the  real  estate  agents  and  the  parties  to  the  pro- 
posed exchange  of  properties  understood  that  the  agreement 
for  the  exchange,  and  any  right  to  commissions,  were  depend- 
ent upon  the  defendants'  acquiring  outstanding  interests  in 
the  property  they  proposed  to  exchange,  and  that  their  ac- 
ceptance of  the  terms  of  the  exchange  offered  by  the  other 
parties  was,  in  fact,  conditional  on  their  acquiring  such  in- 
terests, commissions  can  not  be  recovered  of  defendants,  their 
failure  to  acquire  such  interests  not  having  been  by  their  pro- 
curement or  connivance.     Rieger  v.  Merrill,  125  Mo.  App.  541, 

102  S.  W.  1072.     See.  also  Sec.  45. 

Sec.  66.     Consolidation  of  interests  not  a  sale. 

Where,  to  acquire  means  of  irrigation  for  lands  so  as  to 
make  them  salable,  they  were  transferred  to  a  land  irrigation 
company,  tlie  owner  taking  stock  and  bonds  therefor,  the  trans- 
action was  a  consolidation  of  interests,  and  not  a  sale  of  the 
land  within  the  contract  entitling  plaintiff  to  commissions  for 
services  in  effecting  a  sale  of  the  lands.  Close  v.  Browne,  230 
111.  228,  82  N.  E.  629. 

Sec.  67.     Payments  in  installments. 

Where  a  vendor  agreed  to  pay  his  agent's  commissions  for 
selling  the  land  out  of  the  purchase  money  as  it  was  paid  in 
proportionate  amounts,  and  on  foreclosure  of  the  purchase 
money  mortgage,  the  vendor  bids  in  the  property  for  the  full 
balance  then  unpaid  and  costs,  the  whole  commission  becomes 
due  on  the  confirmation  of  such  foreclosure  sale.  Crane  v. 
Eddy,  191  111.  645,  61  N.  E.  431,  85  Am.  St.  Rep.  384. 

In  an  action  for  a  broker's  commissions,  evidence  that  de- 
fendant applied  to  witness  to  know  what  to  do  concerning 
the  proposed  purchaser's  proposition  to  pay  for  the  land  in 
monthly  installments,  the  witness's  advice  given  in  response, 
was  inadmissible.     Leuschner  v.  Patrick  (Tex.  Civ.  App.   '07), 

103  S.  W.  664. 


96  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

A  contract  to  perform  a  given  duty  for  a  given  sum  would 

•  be  entire,  but  a  contract  to  perform  the  same  duty  for  a  given 

sum,  to  be  paid  in  installments  as  the  performance  progressed, 

would  be  severable,  so  far  as  the  right  to  recover  the  several 

installments  is  concerned.     Mechem  on  Agency  See.  634. 

Sec.  68.    Introduction  of  prospective  purchaser. 

A  broker  is  not  entitled  to  compensation  for  merely  intro- 
ducing the  vendee,  unless  his  character  as  such  agent  was  dis- 
closed to  the  principal  at  the  time  of  contract.  Keener  v. 
Harrod,  2  Md.  63;  Bassford  v.  West,  124  Mo.  App.  248,  101 
S.  W.  610.  See  also  Sees.  450,  532.  Where  a  real  estate 
broker  was  not  acquainted  with  the  purchaser,  and  did  not 
introduce  him  to  the  seller,  the  effectiveness  of  the  broker's 
instrumentality  in  bringing  about  the  sale  must  be  affirma- 
tively proved  to  entitle  him  to  commissions.  Halterman  v. 
Leining,  90  N.  Y.  S.  1093,  45  Misc.  397. 

While  an  agent  employed  to  sell  land  must  find  a  purchaser 
ready,  able  and  willing  to  buy  on  the  terms  proposed  before 
he  has  earned  his  commissions,  that  rule  does  not  apply  to 
one  who  is  only  hired  to  render  the  preliminary  service  of 
introducing  the  seller  to  persons  who  shall  afterwards  buy. 
Maijer  v.  McCann,  136  111.  App.  501,  affirmed  232  111.  507,  83 
N.  E.  1042. 

To  entitle  a  broker  to  recover  commissions  on  a  sale  of  land 
direct  by  the  owner  to  a  purchaser  originally  introduced  to 
the  owner  by  the  broker,  the  latter  must  show,  not  only  that 
he  introduced  the  buyer,  but  affirmatively  that  the  buyer  was 
induced  to  apply  direct  to  the  owner  by  the  means  employed 
by  the  broker.  English  v.  Wm.  George  Realty  Co.  (Tex.  Civ. 
App.   '09),  117  S.  W.  996. 

Sec.  69.  Indirect  acts  of  broker  ineffectual  to  establish  con- 
tractual relations. 
The  owner  of  a  house  having  received  from  his  son  a  tele- 
gram asking  his  lowest  price  for  the  house,  which  was  sent  at 
the  instigation  of  a  real  estate  broker,  answered  stating  the 
price  he  would  take,  no  sale  was  made  to  the  person  whom  the 
broker  had  in  view  as  a  purchaser,  on  account  of  certain  in- 
cumbrances on  the  property;  eight  months  afterward  the  same 


THE  CONTRACT  OF  AGENCY.  97 

person,  through  another  broker,  purchased  the  house,  the  in- 
cumbrances having  been  removed.  Held,  that  the  former 
broker  was  not  entitled  to  a  commission  for  effecting  the  sale. 
Chandler  v.  Sutton,  5  Daly  (N.  Y.),  112.  See  also  Sec.  448. 
Compare  Sec.  446. 

An  agent,  to  procure  a  purchaser  of  property,  can  not  re- 
cover commissions  for  effecting  a  sale,  on  proof  that  the  pur- 
chaser, without  solicitation  by  the  agent,  became  aware  that 
the  property  was  for  sale  by  overhearing  negotiations  between 
the  agent  and  another.  Monson  v.  Carlstrom  (Iowa  Sup.  '09), 
119  N.  W.  606. 

Sec.    69a.     Indirect    sale    which    authorizes    commissions    to 
broker. 

A  broker  "indirectly"  interested  the  purchaser  in  the  prop- 
erty, and  so  was  entitled  to  the  commissions  provided  for, 
though  the  sale  was  made  by  the  owner,  unless  to  one  not  in- 
terested in  the  property  through  the  broker  "in  any  way, 
directly  or  indirectly,"  where  the  broker  brought  the  prop- 
erty to  the  attention  of  and  showed  it  to  G,  and  G  then  gave 
the  information  so  acquired  to  P,  and  P  acted  thereon,  in- 
spected the  property  and  reported  his  information  to  C,  who, 
acting  on  such  information,  went  to  the  property  and  exam- 
ined it,  and  thereupon  bought  it  directly  of  the  owner.  Sho- 
her  V.  Dean  (Mont.  Sup.  '09),  102  P.  323. 

Sec.  70.    Information,  acted  upon  by  broker,  not  establishing 
contractual  relations. 

"Where  the  owners  of  real  estate  expressly  refused  to  em- 
ploy the  plaintiff,  a  broker,  in  selling  their  property,  it  was 
held  that  the  mere  fact  that  the  plaintiffs,  after  ascertaining 
the  price  charged  for  the  property,  sent  a  purchaser  to  whom 
a  sale  was  effected,  did  not  entitle  the  broker  to  recover  com- 
missions. Pierce  v.  Thomas,  4  E.  D.  Smith  (N.  Y.),  354.  See 
also  Sec.  178. 

Sec.  71.    Insurance  company,  broker  obtaining  loans  from  not 
agent  of. 

The  fact  that  a  loan  agent  who  is  in  the  habit  of  sending 
applications  to,  and  obtaining  loans  from,  an  insurance  com- 


98  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

pany  as  well  as  other  parties,  is  the  agent  of  sucn  company 
for  the  purpose  of  procuring  insurance,  does  not  constitute 
him  their  agent  in  respect  to  loans  obtained  by  him  from  them. 
Mass.  Mut.  Life  Ins.  Co.  v.  Boggs,  121  111.  119,  13  N.  E.  550. 


CHAPTER  XII. 


SECTION. 

72.  Written  proposition  from  pro- 

poser and  acceptance  by 
agent  makes  binding  contract. 

73.  On  failure  of  vendor  to  re-exe- 

cute contract  after  purchaser 
materially  altered,  no  meet- 
ing of  minds. 

74.  Signature      of      principal      by 

agent. 

75.  Signature      of      principal      by 

agent  should  be  followed  by 
his  as  agent. 

76.  Signature    of    B,    as    attorney 

for     parties     of     first     part, 
failed   to  bind   the   principal. 
76a.  Agent  contracting  as  principal 
personally  liable  as  such. 

77.  Signature  placed  at  bottom  or 

top  suffices. 


SKCTION. 

78.  The  word  "subscribed"  equiva- 

lent to  "signed." 

79.  In  some  States  contract  to  di- 

vide commissions  must  be  in 
writing. 

79a.  Unless  barred  by  statute  bro- 
ker may  be  authorized  by  pa- 
rol to  sell  or  lease  real  prop- 
erty. 

79b.  In  certain  States  contracts  for 
the  sale  of  lands  must  be  in 
writing. 

80.  Broker  on  procuring  customer 

sending  telegram  to  owner, 
Telegraph  Co.,  not  agent  as 
to  notice. 

81.  Telegram  must  reach  owner  be- 

fore he  signs  contract  with 
another  or  it  is  too  late. 


Sec.  72.  Written  proposition  from  proposer  and  acceptance  by 
agent  makes  binding  contract. 
A  written  proposition  to  employ  one  as  agent  to  sell  land 
signed  by  the  proposer  and  accepted  by  the  agent,  though 
not  signed  by  him,  makes  a  binding  contract  of  agency  en- 
forceable against  both.  Rowan  v.  Hull,  55  W.  Va.  335,  47 
S.  E.  92.     Compare  Sec.  56. 


Sec.  73.     On  failure  of  vendor  to  re-execute  contract  after  pur- 
chaser materially  altered  the  same,  there  was  no  meeting 
of  minds. 
Where  a  broker,  in  an  action  for  services  in  procuring  de- 
fendant a  purchaser  for  land,  claimed  that  both  parties  had 
signed  and  delivered  duplicate  contracts  for  sale,  and  defend- 

99 


100  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

ant  claimed  that  after  he  signed  the  papers  the  purchaser 
took  them  and  signed  only  after  making  material  alterations 
therein,  and  that  he  thereupon  refused  to  re-execute  the  con- 
tract as  altered,  and  that  they  were  never  delivered,  it  was  error 
to  refuse  an  instruction  that  if,  after  defendant  executed  the 
contracts,  they  were  altered  before  the  purchaser  executed 
them,  and  were  never  subsequently  re-executed,  there  was  no 
meeting  of  minds.  Brnce  v.  Hurlhut,  QQ  N.  Y.  S.  1127,  54 
App.  Div.  616.     See  also  Sec.  33. 

Sec.  74.  Signature  of  principal  by  agent,  in  his  presence,  is 
that  of  principal. 
Where  a  principal's  name  is  signed  by  the  agent  at  the 
request  of  the  principal,  and  in  his  presence,  the  signature 
is  deemed  that  of  the  principal  himself,  since  the  agent  does 
not  act  in  that  capacity,  but  merely  as  the  hand  or  amanuensis 
of  the  principal,  and  in  such  case  the  agent  signs  the  prin- 
cipal's name  only  as  if  the  principal  had  himself  signed  it. 
Gardner  v.  Gardner,  5  Cush.  (Mass.)  483;  R.  I.  &  St.  L.  R. 
Co.  V.  Shunick,  65  111.  223;  Meyer  v.  King,  29  La.  Ann.  567, 
569.     Compare  Sec.  18. 

Sec.  75.  Signature  of  principal  by  agent  should  be  followed 
by  his  as  agent. 
Only  the  name  of  the  principal  should  be  used  in  the  body 
of  the  instrument,  as  one  of  the  contracting  parties,  the  agent 
should  then  sign  the  principal's  name  to  it,  and  then  his  o^vn 
as  agent.  Mears  v.  Morrison,  1  Breese  (111.),  172;  Bingham 
V.  Steivart,  13  Minn.  106;  Smith  v.  Morse,  9  Wall.  (U.  S.)  76. 

Sec.  76.     Signature  of  B,  as  attorney  for  parties  of  first  part, 
failed  to  bind  the  principal. 

Where  a  contract  for  the  sale  of  lands  stated  in  the  body 
of  it  that  it  was  made  by  the  parties  of  the  first  part,  with- 
out naming  them,  by  B,  their  attorney,  the  concluding  clause 
was,  "In  witness  whereof  said  B,  as  attorney  for  the  parties 
of  the  first  part,  and  said  parties  of  the  second  part,  have 
hereunto  set  their  hands  and  seals,"  and  B.  signed  his  own 
name  only,  with  a  single  seal,  it  was  held  that  the  parties  of 
the  first  part  were  not  bound,  and  that  the  instrument  should 


THE  CONTRACT  OF  AGENCY.  101 

have  been  executed  in  the  name  of  the  principals,  and  pur- 
port to  be  sealed  with  their  seals  instead  of  the  seal  of  the 
attorney.  Townsend  v.  Huhbard,  4  Hill  (N.  Y,),  351;  Town- 
send  V.  Corning,  23  Wend.  (N.  Y.)  435. 

Sec.  76a.    Agent  contracting  as  principal  personally  liable  as 
such. 
Where  an  agent  contracts  as  principal,   and  does  not  dis- 
close his  agency,  he  is  personally  liable  as  principal.     Loehde 
V.  Halsey,  83  111.  App.  452.     See  also  Sees.  43,  383. 

Sec.  77.  Signature  placed  at  bottom  or  top  a  sufficient  compli- 
ance with  statute. 
The  requirement  of  a  statute  that  a  contract  for  the  sale 
of  lands  between  a  broker  and  the  owner  be  subscribed  by 
both  parties  is  met  when  the  signature  of  the  parties  is  placed 
thereon  to  authenticate  and  give  effect  to  the  contract,  whether 
placed  at  the  bottom,  the  top,  or  in  the  body  of  the  instru- 
ment.    Myers  v.  3Ioore,  78  Neb.  448,  110  N.  W.  989. 

Sec.  78.     Signature,  the  word  "subscribed"  is  equivalent  to 
"signed." 

The  word  "subscribed,"  as  used  in  a  statute  requiring  a 
contract  for  the  sale  of  lands,  between  a  broker  and  the  owner, 
to  be  in  writing,  subscribed  by  both  parties,  is  synonymous 
with  the  word  "signed."     Id. 

Sec.  79.  In  some  States  a  contract  to  divide  commissions  with 
a  sub-agent  must  be  in  writing. 
Burns'  Anno.  Stat.  1901,  Sec.  6629a,  declares  that  no  con- 
tract for  the  payment  of  any  sum  as  commissions  for  finding 
a  purchaser  for  the  real  estate  of  another,  shall  be  valid  un- 
less the  same  shall  be  in  writing,  signed  by  the  owners  of 
the  real  estate  or  his  legally  appointed  and  duly  qualified 
representative.  Held,  that  such  section  did  not  invalidate  a 
written  contract  between  real  estate  brokers  by  which  one  of 
them  agreed  to  pay  the  other  one  dollar  per  acre  for  finding 
a  purchaser  for  land  which  the  first  broker  had  for  sale.  Prov- 
ident T.  Co.  V.  Darraugh,  168  Ind.  29,  78  N.  E.  1030.  And 
that  letters  qualifying  the  original  authority  to  pay  plaintiff 


102  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

$1  per  acre  for  finding  a  purchaser  did  not  constitute  a  re- 
vocation of  the  authority.     Id. 

Sec.  79a.     Unless  barred  by  statute,  broker  may  be  authorized 
by  parol  to  make  a  valid  contract  to  sell  or  lease  real  prop- 
erty. 
Except  in  those  States  where  the  statutes  expressly  require 
the  authority  to  be  in  writing,  an  agent  may  be  authorized 
by  parol  to  make  a  valid  contract  for  the  sale  or  the  leasing 
of  liis  principal's  lands.     Mechem  on  Ag.  Sec.  89. 

Sec.  79b.    In  certain  States  a  contract  for  the  sale  of  lands 
must  be  in  writing. 
Alabama,  Arkansas,  California,  Colorado,  Illinois,  Michigan, 
Missouri,   Nebraska,   New   Hampshire,   New   Jersey,   Ohio  and 
Pennsylvania.     ]\Iechem  on  Agency  Sec.  89. 

Sec.  80.     Broker  on  procuring  customer  sending  telegram  to 
owner,  Telegraph  Company  not  agent  as  to  notice. 

The  understanding  that  a  real  estate  broker,  on  procuring 
a  purchaser  of  land,  should  wire  the  owner,  does  not  consti- 
tute the  telegraph  company  the  owner's  agent,  so  that  a  no- 
tice to  the  company  that  a  purchaser  has  been  procured  is 
not  notice  to  the  OAvner  until  the  telegram  is  actually  received 
by  him.  Johnson  v.  Wright,  124  Iowa,  61,  99  N.  W.  103.  See 
also  Sec.  15. 

Sec.  81.  Telegram  must  reach  owner  before  he  signs  contract 
with  another  or  it  is  too  late. 
In  an  action  for  commissions  earned  on  a  sale  of  land  it 
appeared  that  plaintiff  procured  a  purchaser  who  entered  into 
a  contract  to  buy,  plaintiff  notified  the  owner  thereof  by  tele- 
gram the  following  day,  the  owner  had  listed  his  land  with 
another  broker,  who  secured  from  a  third  person  a  written 
contract  to  buy  a  part  of  the  land.  Held,  that  unless  the 
owrer  received  the  telegram  before  signing  the  contract  of 
sale  wiih  the  third  person,  plaintiff  could  not  recover  com- 
missions. Johnson  Bros.  v.  Wright,  124  Iowa,  61,  99  N.  W. 
103;  WeisekGerhart  B.  E.  Co.  v.  Wai.vright,  127  Mo.  App. 
514,  105  S.  ^.  10fl6. 


PART  II. 

OPTIONS,  SALES,  EXCHANGES, 
LEASES,  LOANS,  ETC. 

103 


CHAPTER  I. 
OPTIONS. 

Sec.  82.    Exclusive  contract  to  sell  and  take  all  over  net  price, 
an  agency  and  not  an  option. 

A  contract  providing  that  C  should  have  the  exclusive  sale 
of  K's  land  for  sixty  days  at  a  sum  named,  commissions  to 
be  obtained  above  that  sum,  makes  C  the  agent  of  K,  and  does 
not  give  him  an  option  to  purchase  the  land  at  the  price  named. 
Chesum  v.  Kreighaum,  4  Wash.  680,  30  P.  1098 ;  Tate  v.  Ait- 
ken,  5  Cal.  App.  505,  90  P.  836 ;  Young  v.  Ruhwedel,  119  Mo. 
App.  231,  96  S.  W.  228;  Arnold  v.  Nat.  Bk.  Waupaca,  126 
Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  (N.  S.)  580.  Compare 
Sec.  88. 

Sec.  83.     Broker  employed  to   secure  an   option   entitled  to 
reasonable  compensation. 

A  broker  employed,  not  to  purchase  property  but  simply 
to  procure  an  option,  and  whose  employer  does  not  avail  him- 
self of  the  services  to  make  a  purchase,  is  entitled  only  to 
reasonable  compensation,  and  not  to  the  same  compensation 
to  which  he  w^ould  have  been  entitled  had  he  been  employed 
to  purchase  the  property.  Boardman  v.  Hanks,  185  Mass. 
555,  70  N.  E.  1012. 

Sec.  84.     Option,  subject  to  revocation,  makes  principal  liable 
to  broker  on  finding  a  purchaser. 

Though  the  owner  was  at  liberty  under  the  agreement 
to  sell  the  property  himself,  the  mere  fact  that  he  had  given 
a  prospective  purchaser  an  option  on  the  property,  subject 
to  revocation  by  either  party  at  any  time,  did  not  relieve  the 
principal  of  liability  for  a  commission  if  the  broker  during 
the  time  given  him  found  a  customer  able,  ready  and  willing 

105 


106  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

to  buy  on  the  owner's  terms.     York  v.  Nash,  42  Oregon,  321, 
71  P.  59. 

Sec.  85.  Broker  employed  to  effect  a  sale,  who  secures  a  mere 
option,  is  not  entitled  to  commissions. 
A  broker  employed  to  find  an  absolute  purchaser  at  a  spec- 
ified price,  on  terms  agreeable  to  the  seller,  has  not  earned 
a  commission  by  procuring  a  person  who  is  willing  to  execute 
a  contract  by  which  it  is  optional  with  him  to  make  the  pay- 
ments specified  therein,  and  on  his  failure  to  do  so  the  con- 
tract to  become  void  and  he  merely  to  forfeit  the  amount, 
if  any  paid.  Touseij  v.  Etzel,  9  Utah,  329,  34  P.  291 ;  Ililden- 
hrand  v.  Lillis,  10X'olO.App_.  522,  51  P.  1008;  Brown  v.  Kegan, 
32  Colo.  463,  76  P.  1056;  Fox.y.  Denargo  Ld.  Co.,  37  Colo. 
203,  86  P.  344-;  Block  v.  Eijan,  4  App.  Cas.  (D.  C.)  283;  Law- 
rence V.  Rhodes,  188  111.  96,  58  N.  E.  910;  Aigler  v.  Carpenter 
PI.  Ld.  Co.,  51  Kan.  718,  33  P.  593;  Kimherly  v.  Henderson, 
29  Md.  512;  Brown  v.  Wasner  (Wash.  Sup.  '09),  99  P.  581; 
Herman  v.  Fisher,  82  Mich.  208,  46  N.  W.  225;  Zeidler  v. 
Walker,  41  Mo.  App.  118;  Stengel  v.  Sergeant  (N.  J.  Ch.  '08), 
68  A.  1106;  Runyon  v.  Wilkinson,  57  N.  J.  L.  420,  31  A.  390; 
Ward  V.  Zhorowski,  63  N.  Y.  S.  219,  31  Misc.  66;  Walsh  v. 
Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50;  Bennett  v.  Egan,  23 
N.  Y.  S.  154,  3  Misc.  421 ;  Levy  v.  Kottman,  32  N.  Y.  S.  241, 
11  Misc.  372 ;  Blakely  v.  Pursell,  90  N.  Y.  S.  337 ;  Milstein  v. 
Loring,  92  N.  Y.  S.  417,  102  A.  D.  349 ;  Hough  v.  Baldwin,  103 
N.  Y.  S.  133,  53  Misc.  284;  Brackenridge  v.  Claridge,  91  Tex. 
527,  44  S.  W.  819,  43  L.  R.  A.  593;  Runck  v.  Dimmick  (Tex. 
Civ.  App.  '08),  111  S.  W.  779;  Lawrence  v.  Peterson,  34  Wash. 
1,  74  P.  1011;  Dwyer  v.  Rahorn,  6  Wash.  213,  33  P.  350; 
Wilson  V.  Ellis  (Tex.  Civ.  App.  '08),  106  S.  W.  1152.  See 
also  Sec.  90. 

Sec.  86.     Broker  entitled  to  commissions  where  customer  exer- 
cises option  by  purchasing  the  property. 
On  the   customer  exercising  his   option   by   purchasing   the 
property  the  broker's  commission  is   due.     De   Wolf  v.   Wis. 
Lake  Ice  &   Cartage   Co.    (Wis.   Sup.    '10),   124  N.   W.   297; 


OPTIONS.  ,  107 

Block  V.  Ryan,  4  App.  Cas.  (D.  C.)  283;  Aigler  v.  Carpenter 
PI.  Land  Co.,  51  Kan.  718,  33  P.  593;  Kimberly  v.  Henderson, 
29  Md.  512;  Walsh  v.  Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50; 
Lawrence  v.  Peterson,  34  Wash.  1,  74  P.  1011;  Morson  v. 
Burnside,  31  Ont.  (Can.)  438. 

Sec.  87.    Where  principal  held   only  an  option   at  time  of 
sale  does  not  defeat  broker's  right  to  commissions. 

The  fact  that  the  principal  does  not  own  the  property  which 
he  employs  the  broker  to  sell,  does  not  defeat  the  broker's 
right  to  compensation  on  procuring  a  purchaser.  Smith  v. 
Schiele,  93  Cal.  144,'28  P.  857.  Compare  Sees.  122,  154,  180. 
Where,  at  the  time  of  the  contract  of  employment,  the  prin- 
cipal has  only  an  option  on  the  land,  or  for  any  other  reason 
can  not  avail  himself  of  the  offer  procured  by  the  broker. 
Monk  V.  Parker,  180  Mass.  246,  63  N.  E.  793. 

Sec.  88.  Broker  who  took  an  option  not  agent  of  the  owner 
to  negotiate  a  sale. 
A  real  estate  broker  who  took  an  option  to  purchase  cer- 
tain real  estate  at  a  stated  price  is  not  the  agent  of  the  owner 
for  negotiating  its  sale.  Southack  v.  Lane,  65  N.  Y.  S.  629. 
32  Mis.  141.     Compare  Sec.  82. 

Sec.  89.  Exercise  of  option  to  purchase  revokes  contract  of 
agency  to  sell  land. 
A  contract  of  agency  for  the  sale  of  land  is  revoked  by 
notice  of  the  exercise  of  an  option  to  purchase  subsequently 
given.  Faraday  Coal  &  Coke  Co.  v.  Owens,  26  Ky.  L.  R.  243, 
80  S.  W.  1171. 

Sec.  90.  Agreement  to  sell,  cash  on  delivery  of  deed,  etc.,  a 
mere  option  and  not  a  contract  of  sale. 
An  agreement  to  sell  realty  "cash  on  delivery  of  deed,  or 
one-half  on  time  if  terms  can  be  agreed  on,"  is  a  mere  option 
and  not  a  contract  of  sale.  Wallace  v.  Figone,  107  Mo.  App. 
362,  81  S.  W.  492 ;  Ind.  &  Ark.  L.  &  M.  Co.  v.  Pharr,  82  Arkr 
573,  102  S.  W.  686.    See  also  Sec.  85. 


108  *  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  91.    A  sale  of  land  by  the  owner,  subject  to  option,  does 
not  constitute  a  breach  of  contract. 

If  during  the  continuance  of  the  option  given  to  a  real 
estate  broker,  the  owner  bargains  the  property  to  a  third 
party  contingent  on  the  failure  of  the  option  holder  to  com- 
ply with  the  terms  of  the  option,  does  not  alone  constitute  a 
breach  of  the  option  by  the  owner.  Smith  v.  Lawrence,  98 
Me.  92,  56  A.  455. 

Sec.  92.    Where  broker  sent  owner  the  form  of  an  option, 
which  he  executed,  on  sale  broker  not  entitled  to  com- 
mission. 
"Where  a  broker  sent  the  owner  of  real  estate  a  form  of  a 
purchase  option,  which   the  owner  executed  and  a  sale  took 
place  under  the  option,  the  broker  was  not  entitled  to  recover 
commissions  from  the  owner,  as  the  transaction  did  not  amount 
to  an  employment.     Davenport  v.   Corhett,  98  N.  Y.   S.  403, 
112  App.  Div.  382.     See  also  Sec.  104. 

Sec.  93.     Broker  to  procure  a  lessee  not  entitled  to  commis- 
sions for  an  option. 

A  paper  signed  by  a  principal  and  a  proposed  tenant  stip- 
ulated, "We  agree  to  execute  a  lease  of  certain  premises  to 
such  tenant"  from  October  or  November,  1906,  for  seven 
years,  at  a  rental  of  $18,000  per  year,  the  lease  as  to  condi- 
tions to  be  an  exact  copy  of  the  lease  we  now  hold  on  the 
above  premises  "(by  the  conditions  it  means  taxes,  insurance, 
if  in  lease)"  the  running  expense,  etc.,  included;  it  is  under- 
stood that  at  signing  of  lease  six  months'  rent  in  advance  is 
to  be  paid  "by  the  tenant,"  this  to  draw  six  per  cent,  yearly 
in  advance,  principals  to  secure  the  proposed  tenant  for  above 
amount  by  assignment  of  lease  of  the  premises  now  existing, 
provided  this  can  be  done,  or  other  security,  lease  to  be  exe- 
cuted on  or  before  October  10,  1902.  Held,  that  the  instru- 
ment was  a  mere  option,  in  no  way  obligating  the  proposed 
tenant,  and  the  procuring  of  his  signature  thereto  was  not  a 
compliance  on  the  broker's  part  with  a  contract  between  the 
broker  and  his  principal  whereby  the  broker  was  to  become 
entitled  to   a   certain   commission   for  procuring  a   tenant   as 


OPTIONS.  -  109 

such  lessee  of  the  premises  in  question,  in  which  the  principal 
had  a  leasehold  interest.  Benedict  v.  Pincus,  95  N.  Y.  S. 
1042,  109  App.  Div.  20;  Laws  &  Bradford  v.  Schmidt,  80 
Ohio  St.  108,  88  N.  E.  319. 

Sec.  94.     On  concluding  an  option  for  whole  tract,  owner  jus- 
tified in  refusing  offer  for  part. 

Where  plaintiff,  pursuant  to  her  employment  to  sell  certain 
land  for  defendant,  produced  a  purchaser  who  was  willing  to 
take  an  option  on  the  land,  defendants  were  justified  in  re- 
fusing to  consider  the  proposition  of  another  customer  for  a 
portion  of  the  land  furnished  by  plaintiff  until  the  negotia- 
tions pending  with  the  first  customer  were  terminated.  Fox 
V.  Denargo  Land  Co.,  37  Colo.  203,  86  P.  344. 

Sec.  95.    Parties  taking  options  at  liberty  to  withdraw  before 
contract,  and  no  commissions  are  earned. 

Where  the  owner  of  certain  land  was  willing  to  give  a  pur- 
chaser procured  by  plaintiff  the  privilege  of  buying,  and  the 
purchaser  was  willing  to  take  an  option,  it  would  be  presumed 
that  the  parties  were  negotiating  for  a  M'ritten  agreement; 
hence,  neither  party  was  at  liberty  to  withdraw  any  propo- 
sition made  during  the  negotiations  and  to  repudiate  any  oral 
agreement  before  the  execution  of  the  written  contract,  with- 
out the  owner  being  liable  to  the  broker  furnishing  such  pur- 
chaser for  commissions  in  case  of  the  failure  of  the  parties  to 
agree.  Fox  v.  Denargo  Land  Co.,  37  Colo.  203,  86  P.  344; 
Smith  V.  Merrill,  134  Wis.  227,  114  N.  W.  508.  See  also  Meet- 
ing of  Minds,  Sec.  33. 

Sec.  96.  When  option  wd'i  exercised  broker  was  entitled  to 
commissions,  although  paid  for  reselling  lease. 
Plaintiff  engaged  by  defendant  to  sell  found  no  customer, 
but  found  a  person  who  would  take  a  lease  with  an  option  to 
purchase,  and  defendant  agreed  to  this,  and  paid  plaintiff  a 
commission  on  the  lease,  and  agreed  to  pay  a  commission  on 
a  sale,  if  the  option  was  exercised.  Held,  that  plaintiff  was 
not  deprived  of  his  right  to  commissions  from  defendant  for 
the  sale  on  the  option  being  exercised,  because  after  the  exe- 


110  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

cution  of  the  lease  and  option  he  found  a  purchaser  for  the 
lease  and  received  a  commission  from  his  principal.  Davis 
V.  Weher,  92  N.  Y.  S.  823,  46  Misc.  590. 

Sec.  97.     Contract  of  exchange  contingent  on  encroachments 
not  defeating  was  a  mere  option. 

In  an  action  by  a  real  estate  broker  for  commissions  for 
effecting  an  exchange  of  defendant's  property,  evidence  that 
at  or  about  the  time  of  the  signing  of  the  contract  of  exchange, 
which  stipulated  that  if  the  other  party  thereto  rejected  de- 
fendant's title,  on  the  ground  of  bay-window  or  stoop-ledge 
encroachments,  his  deposit  should  be  returned  in  full  of  all 
claims,  plaintiff  signed  a  writing  wherein  he  agreed  to  wait 
for  his  commissions  until  after  the  title  closed,  was  evidence 
tending  to  show  that  plaintiff,  as  well  as  defendant,  regarded 
the  contract  of  exchange  as  a  mere  option,  and  not  an  abso- 
lute, enforceable  contract  of  exchange."  Hough  v.  Baldwin,  99 
N.  Y.  S.  545,  50  Misc.  546.     See  Sec.  95. 

Sec.  98.  Co-agent  not  bound  by  an  option  neither  given  nor 
ratified  by  himself. 
A  co-agent  under  a  power  to  sell  is  not  bound  by  an  un- 
authorized option  not  given  or  ratified  by  himself,  and,  if  he 
purchase  the  land  for  himself,  can  not  be  held  as  a  trustee 
for  the  claimant  under  the  option.  Tibhs  v.  Zirkle,  55  W. 
Va.  49,  46  S.  E.  701,  104  Am.  St.  R.  977. 

Sec.  99.  Option  and  title  bond  taken  by  agent  to  insure  sale, 
do  not  affect  relationship  of  agency. 
Real  estate  agents  who  take  from  the  owner  of  lands  listed 
with  them  for  sale,  an  option  and  title  bond  to  make  certain 
that,  if  a  sale  is  effected,  it  will  be  carried  out  without 
obstruction,  are  still  agents,  so  that  the  principal  is  liable  for 
their  fraud.     Alger  v.  Anderson,  78  Fed.  729. 

Sec.  100.    Option  at  best  price  obtainable  means  satisfactory 

to  purchaser. 

A   contract   of   employment  to  obtain   options   on   property 

stated  that  the  options  should  be  at  a  price  at  which  the  party 

for  whom  they  were  purchased  "may  buy."     Held,  that  the 


OPTIONS.  Ill 

intent  of  the  parties  was  that  the  option  obtained  should  be 
at  a  price  which  was  satisfactory  to  the  purchasers,  and  if 
shown  to  be  so,  the  conditions  of  the  contract  were  fully  com- 
plied with.     Worthington  v.  McGarry,  149  Ala.  251,  42  S.  988. 

Sec.  101,  Option  unexercised,  subsequent  sale  to  party  by 
administrator,  broker  not  entitled  to  commissions. 
A  broker  who  finds  a  person  who  takes  an  option  on  the 
purchase  of  certain  mining  property,  which  is  not  carried  out, 
can  not,  where  the  owner  dies  before  the  option  expires,  re- 
cover his  agreed  commissions  from  the  administrator,  where 
the  latter,  after  the  expiration  of  the  option,  sells  the  prop- 
erty to  the  same  person  at  the  same  price,  even  though  the 
negotiations  conducted  by  the  broker  prior  to  the  owner's 
death  may  have  contributed  to  the  accomplishment  of  the  sale. 
Crowe  V.  Trickey,  204  U.  S.  228,  affirming  Trickey  v.  Crowe 
(Ari.  Sup.),  71  P.  965;  Crowe  v.  Harmon,  204  U.  S.  241,  af- 
firming Harmon  v.  Crowe  (Ari.  Sup.),  71  P.  1125.  See  also 
Sec.  199. 

Sec.  102.    Broker  to  secure  two  options,  principal  tells  him 
not  to  act  as  to  one,  breach  of  contract. 

Where  a  party  under  a  contract  is  to  secure  for  a  second 
party  options  on  certain  properties,  and  the  second  party  di- 
rects him  not  to  proceed  in  reference  to  securing  an  option 
on  one  of  the  properties,  this  is  a  breach  of  the  contract  for 
which  the  second  party  is  liable  in  damages.  Worthington  v. 
McGarry,  149  Ala.  251,  42  So.  988. 

Sec.  103.  Broker  not  entitled  to  compensation  for  securing 
part  of  options. 
Plaintiff  and  defendant  entered  into  a  contract  whereby  de- 
fendant agreed  to  pay  plaintiff  a  certain  sum  if  the  plaintiff 
should  secure  certain  options  on  ore  land  and  on  a  majority 
of  the  stock  of  a  corporation;  plaintiff  secured  the  options 
except  as  to  the  stock  of  the  corporation.  Hdd,  that  plaintiff 
is  not  entitled  to  compensation  under  the  contract  for  secur- 
ing the  ore  option,  by  alleging  and  proving  that  he  was  pre- 
vented by  defendant  from  endeavoring  to  obtain  the  other.   Id. 


112  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Sec.  104.     Broker  obtaining  price  from  owner,  amounts  only 
to  a  naked,  verbal  option. 

Where  a  broker  asks  and  obtains  from  the  owner  the  price 
at  which  he  would  sell  real  property,  without  anything  being 
said  as  to  the  broker's  employment  or  compensation,  and  it 
does  not  appear  that  the  owner  knew,  or  had  reasonable  grounds 
to  believe,  that  the  broker  expected  to  be  paid,  no  contract  of 
employment,  express  or  implied,  can  be  inferred,  but  at  best 
only  a  naked,  verbal  option.  Clammer  v.  Eddy,  41  Colo.  235, 
92  P.  722.     See  also  Sec.  92. 

Sec.  105.  Option  given  and  extended,  broker  held  as  acting 
in  the  character  of  a  purchaser. 
In  an  action  by  a  broker  for  commissions  in  procuring  a 
purchaser  of  timber  lands,  it  appeared  that  the  broker,  on 
learning  that  the  property  was  for  sale,  looked  it  over  at  dif- 
ferent times,  and  had  an  interview  wdth  the  owner  as  to  the 
price;  that  thereafter,  he  wrote  a  letter  to  the  owner  request- 
ing him  not  to  let  any  outsider  know  about  the  price  for  a 
time;  that  the  owner  replied  that  he  would  give  the  broker 
an  option  on  the  price  and  conditions  named  until  a  specified 
time;  this  option  was  extended.  Held,  not  to  show  that  the 
broker  was  acting  in  the  sale  as  a  broker  of  the  owner,  but  in 
the  character  of  a  purchaser.  Wood  v.  Palmer,  151  Mich.  30, 
115  N.  W.  242,  14  Det.  L.  N.  963 ;  Harten  v.  Loeffler,  31  App. 
D.  C.  362. 

Sec.  106.  Error  to  prevent  defendant  showing  how  option 
was  finally  made  to  purchaser. 
Where,  in  an  action  by  a  real  estate  broker  to  recover  com- 
missions for  finding  a  purchaser,  defendant  claimed  that  the 
sale  was  made  through  the  efforts  of  another,  it  was  error  to 
sustain  an  objection  to  a  question  to  defendant  by  his  coun- 
sel, as  to  the  circumstances  under  which  the  option  was  finally 
made  to  the  purchaser.  Grieh  v.  Koeffler,  127  Wis.  314,  106 
N.  W.  113. 

Sec.  107.    Defendants  giving  broker  option,  estopped  to  say 
they  procured  his  customer  to  buy. 
Where  defendants  gave  plaintiff  an  option  to  effect  a  sale 
of  coal  property,  if  sold  within  a  certain  time,  on  a  stipulated 


OPTIONS.  113 

commission,  and  agreed  to  assist  plaintiff  in  the  sale  thereof, 
defendants  will  not  be  heard  to  say  that  a  sale  to  one  with 
whom  plaintiff  was  negotiating,  made  during  the  continuance 
of  the  option,  was  the  result  of  their  independent  efforts. 
Wells  V.  Hocking  Valley  Coal  Co.,  137  Iowa,  526,  114  N.  W. 
1076. 

Sec.  108.    Defendant  may  show  purchaser  took  an  option,  and 
did  not  intend  to  buy  unless  he  secured  adjoining  lot. 

In  an  action  by  a  broker  to  recover  commissions  for  mak- 
ing a  sale  of  realty  defendant  may  show  that  plaintiff  knew 
that  the  purchaser  presented  by  him  simply  obtained  an  op- 
tion, and  did  not  intend  to  buy  unless  he  purchased  some  ad- 
joining lots.     Walsh  V.  Gay,  63  N.  Y.  S.  543,  49  App.  Div.  50. 

Sec.  109.     Option  as  only  agreement,  what  owner  may  show 
to  corroborate  that  claim. 

Where,  in  a  suit  for  a  commission  for  finding  a  purchaser 
for  land,  plaintiff  alleged  that  the  owner  listed  it  with  brokers, 
who  listed  it  with  plaintiff's  firm,  with  the  owner's  consent, 
the  owner  could  show  that  shortly  before  the  alleged  listing 
with  such  broker,  he  gave  them  an  option  to  purchase  a  tract, 
including  the  land  on  account  of  which  the  commission  was 
claimed,  as  tending  to  corroborate  the  owner's  claim  that  the 
option  contract  was  the  only  agreement  between  him  and  the 
broker.  Sterling  v.  De  Laune  (Tex.  Civ.  App.  '07),  105  S. 
W.  1169. 

Sec.  110.  Option  held  not  expired  when  sale  was  made  by 
owner. 
In  an  action  by  a  broker  to  recover  commissions  on  a  sale 
of  land,  evidence  held  to  support  a  finding  that  an  option  au- 
thorizing plaintiff  to  sell  the  land,  had  not  expired  before  the 
sale.  Holbrook-Blackwelder,  R.  E.  &  T.  Co.  v.  Hartman,  128 
Mo.  App.  228,  106  S.  W.  1115. 

Sec.  111.     Error  to  grant  new  trial  to  permit  setting  up  the 
exercise  of  an  option. 

Where,  in  an  action  for  a  broker's  services  in  the  sale  of 
a  mine,  a  non-suit  was  granted,  by  reason  of  the  fact  that  an, 


114  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

option  to  purchase  negotiated  by  the  broker  had  not  matured 
when  suit  was  brought,  and  pending  a  motion  for  a  new  trial 
for  alleged  errors  of  law  occurring  at  the  trial,  the  purchaser 
complied  with  the  option  and  completed  the  sale,  it  was  error 
to  grant  a  subsequent  application  for  a  new  trial  in  order  to 
permit  the  broker  to  allege  by  amendment  the  completion  of 
the  sale  and  recover  for  his  services.  Lawrence  v.  Peterson, 
34  Wash.  1,  74  P.  1011. 


CHAPTER   II. 
SALES  OF  REAL  ESTATE. 

Sec.  112.  If  employment  does  not  state  terms  of  sale  satis- 
factory to  principal  implied. 
A  real  estate  broker  is  not  entitled  to  commissions  for  the 
sale  of  land  unless  he  procures  a  purchaser  who  is  able,  ready 
and  willing  to  complete  a  purchase  on  terms  named,  or  which 
are,  in  the  absence  of  an  express  agreement  as  to  terms,  sat- 
isfactory and  agreeable  to  the  owner,  Fairchild  v.  Cunning- 
ham, 84  Minn.  521,  88  N.  W.  15;  Montgomery  v.  Knicker- 
bocker, 50  N.  Y.  S.  128,  27  N.  Y.  App.  D.  117. 

Sec.  113.    A  broker  who  effects  a  sale  according  to  the  terms 
of  the  employment  is  entitled  to  compensation. 

Where  property  is  placed  with  a  broker  for  sale,  he  is  not 
bound  to  consummate  a  sale  or  proctire  a  purchaser  upon  the 
agreed  terms,  but  when  he  does  either  his  commission  is  earned. 
Walsh  V,  Hastings,  20  Colo,  243,  38  P.  324 ;  Gilmore  v,  Bailey, 
103  111.  App,  245 ;  Stephens  v.  Scott,  43  Kan.  285,  23  P.  555 ; 
Dreisbach  v.  Rollins,  39  Kan.  268,  18  P.  187;  Locke  v.  Gris- 
wold,  96  Mo,  App,  527,  70  S,  W,  400 ;  Pollard  v.  Banks,  67  Mo. 
App,  187;  Crowley  Co.  v,  Myers,  69  N.  J.  L.  245;  55  A.  305; 
Brundage  v,  McCormick,  23  N,  Y,  S,  262,  69  Hun,  65 ;  McCaff- 
rey V.  Page,  20  Pa,  Super,  Ct,  400;  Jordan  v.  Snyhenry, 
(Iowa  Sup.  '09),  123  N.  W.  956.  See  Unilateral  Contracts, 
Sec.  20. 

Sec.  114.    A  contract  of  sale  may  be  established  by  circum- 
stantial evidence. 
Circumstantial  evidence  may  be  sufficient  to  establish  a  con- 
tract of  sale  when  no  objection  is  made  to  the  competency  of 
any  Dortion  of  it.     Chapin  v.  Bridges,  116  Mass.  105. 

115 


116  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  115.  A  judicial  sale  producing  increased  price  entitled 
broker  to  more  commissions. 
Where  land  is  bought  at  a  judicial  sale  for  a  nominal  sum  by  a 
third  person  who,  pursuant  to  a  guaranty  made  to  the  receiver 
pays  a  much  larger  sum  for  the  property,  the  broker  is  en- 
titled to  commissions  on  said  larger  sum.  Peters  v.  Anderson, 
23  S.  E.  754,  88  Va.  1051.    Compare  Sec.  859. 

Sec.  116.     Broker  not  entitled  to  commissions  for  making  a 
nominal  sale. 

A  broker  employed  to  sell  property  is  not  entitled  to  a  com- 
mission where  the  transaction  so  far  as  it  was  effected  by  him 
did  not  amount  to  a  sale.  Viaux  v.  Old  South  Soc,  133  Mass. 
1,  10;  Cosgrove  v.  Leonard  Mer.,  etc.,  Co.,  175  Mo.  100,  74  S.  W. 
986 ;  Johnson  v.  Sirret,  153  N.  Y.  51,  46  N.  E.  1035 ;  Terry  v. 
Wilson,  50  Minn.  570,  52  N.  W.  973. 

Sec.  117.  Contract  of  sale  signed  by  purchaser  prima  facie 
evidence  of  readiness  to  buy. 
A  contract  of  sale  signed  by  a  purchaser,  unilateral  when 
tendered  to  the  vendor,  is  prima  facie  evidence  of  the  pur- 
chaser's readiness  and  willingness  to  buy.  Flynn  v.  Jordal,  124 
Iowa,  457,  100  N.  W.  326. 

Sec.  118.  An  enjoined  sale  does  not  deprive  the  broker  of 
commissions  earned. 
A  broker  employed  to  sell  real  estate  has  discharged  his 
duty  when  he  produces  a  purchaser  able  and  willing  to  buy 
upon  the  terms  and  at  the  price  fixed  by  the  seller,  regardless 
of  whether  the  sale  is  ever  actually  consummated  or  not,  pro- 
vided the  failure  is  not  due  to  some  fault  of  the  broker,  and 
even  although  the  sale  is  afterwards  enjoined.  Gibson  v.  Gray, 
17  Tex.  C.  Ap.  646,  43  S.  W.  922. 

Sec.  119.    Broker  employed  to  effect  a  sale  not  entitled  to 
compensation  until  consummated. 

In  an  action  to  recover  the  agreed  compensation  to  be  paid 
on  the  making  of  a  sale  or  disposition  of  the  property,  a  broker 


SALES  OF  REAL  ESTATE.  117 

is  not  entitled  to  recover  for  merely  finding  a  purchaser,  when 
he  failed  to  consummate  a  sale.  Dorrington  v.  Powell,  52  Neb. 
440,  72  N.  W.  587;  Lyle  v.  Uni.  Land  &  Inv.  Co.  (Tex.  Civ. 
App.  95),  30  S.  W.  726;  see  also  Sees.  193,  224,  272,  449;  Pfanz 
V.  Enmburg,  820  St.  1. 

Sec.  120.  The  withdrawal  of  land  from  sale  entitled  broker, 
under  the  contract,  to  commissions. 
By  the  terms  of  the  contract  of  employment  between  the 
owner  of  land  and  a  broker  commissions  became  due  upon 
withdrawal  of  the  property  from  sale  within  a  certain  time. 
Held,  that  the  notice  recited  that  it  was  given  under  a  con- 
tract by  the  owner  to  the  broker  not  to  sell  said  land,  that  it 
had  been  withdrawn  from  the  market,  written  within  that  time, 
while  the  owner  was  repudiating  a  sale  by  the  broker,  was  a 
withdrawal  of  the  premises  from  sale  entitling  the  broker  to 
his  commissions,  not  as  damages  for  breach  of  contract,  but  as  a 
debt.    Maze  v.  Gordon,  96  Cal.  61,  30  P.  962 ;  compare  Sec.  585. 

Sec.  121.  Transaction  whereby  properties  are  given  for  others 
and  cash  difference  is  a  sale. 
A  transaction  by  which  certain  pieces  of  property  are  given 
for  others,  a  definite  price  being  put  on  each  and  the  difference 
paid  in  cash,  is  a  sale  and  not  an  exchange.  Thornton  v.  Moody, 
(Tex.  Civ.  App.  93),  24  S.  W.  331;  Vllman  v.  Land,  37  Tex. 
Civ.  App.  422 ;  84  S.  W.  294. 

Sec.  122.  Sale  miscarrying  through  no  fault  of  principal, 
broker  not  entitled  to  commissions. 
Where  the  owner  of  land  authorized  real  estate  agents  to 
sell  land  purchased  by  him,  and  informed  them  that  he  had 
no  deed  for  the  same,  but  held  it  under  a  contract,  and  the 
agents  made  a  contract  for  the  sale  of  the  land,  but  the  pur- 
chaser refused  to  complete,  because  the  vendor  had  only  a  con- 
tract of  purchase,  there  being  no  other  defect  in  the  title,  it 
was  held  that  the  agents  were  not  entitled  to  recover  the  agreed 
commissions  on  the  sale,  as  it  proved  abortive  without  any 
fault  on  the  part  of  their  principal.  Hoyt  v.  Shipherd,  70  111. 
309;  compare  Sec.  87. 


118  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  123.  Sale  by  wrong  description  bars  broker's  right  to 
commissions. 
A  real  estate  broker  authorized  to  sell  a  tract  of  land  spoken 
of  by  the  owner  as  being  his  land  on  a  certain  canal,  has  no 
autliority  to  sell  it  by  any  other  description  than  that  by 
which  it  was  purchased  by  the  owner,  and  the  broker's  com- 
missions are  not  earned  where  the  trade  falls  through  because 
the  contract  made  by  the  broker  with  the  intending  purchaser 
described  the  tract  as  containing  a  stated  number  of  acres  south 
of  the  canal,  whereas  it  was  described  in  the  conveyance  to  the 
owner  as  being  that  number  of  acres  south  of  the  center  of  the 
canal.     Ward  v.  Lawrence,  70  111.  295. 

Sec.  124.    A  single  sale  of  real  estate  not  doing  business  to 
require  a  license. 

One  who,  while  engaged  in  other  business,  sells  land  for 
another,  may  recover  his  commissions,  though  he  had  not  taken 
out  a  license  as  required  of  real  estate  agents,  since  a  single 
sale  does  not  constitute  the  exercise  of  the  business  of  real 
estate  brokerage.  O'Neill  v.  Sinclair;  153  111.  525,  39  N.  E.  124; 
Black  V.  Snook,  204  Pa.  St.  119,  53  A.  648 ;  Yedinsky  v.  Strouse, 
6  Pa.  Super.  Ct.  587 ;  42  W.  N.  C.  12. 

Sec.  125.  Owner  forced  to  sell  with  joint  owner  deprives 
broker  of  commissions. 
Where  a  landowner,  who  has  engaged  a  real  estate  agent  to 
sell  land  at  a  certain  price,  is  forced  to  join  with  a  joint  owner 
to  effect  a  sale  and  sell  at  a  reduced  price,  the  agent  i''  no*- 
entitled  to  commissions.    Buhl  v.  Noe,  51  111.  App.  622. 

Sec.  126.  Sale  by  broker,  who  agrees  afterward  to  resell,  not 
a  fraud  on  seller. 
A  broker  negotiated  a  sale  of  plaintiff's  land  to  defendant, 
who  had  his  deed  made  out  to  a  third  person,  who  afterwards 
conveyed  to  defendant;  a  few  weeks  after  the  sale  defendant 
agreed  to  let  the  broker  sell  the  land  for  him  at  an  advance, 
the  profits  to  be  equally  divided  between  them;  plaintiff  did 
not  know  at  the  time  of  the  sale  that  defendant  was  the  pur- 
chaser, and  there  was  then  no  arrangement  or  understanding 
money  to  be  paid  on  the  execution  of  the  deed,  but  further 


SALES  OF  REAL  ESTATE.  119 

between  defendant  and  the  broker  as  to  any  resale  of  the 
property  or  division  of  the  profits.  Held,  that  there  was  nothing 
in  the  transaction  in  fraud  of  plaintiff.  Glover  v.  Layton,  145 
111.  92,  34  N.  E.  53. 

Sec.  127.     Sale  ineffectual  where  broker  had  no  authority  to* 
make  it. 

In  a  suit  for  specific  performance  of  a  contract  by  C.  as  agent 
of  defendant  to  convey  certain  lots,  it  appeared  that  the  lots 
were  situate  in  D.,  where  such  agent  resided;  that  on  March 
30,  1889,  defendant  wrote  the  agent:  "I  will  be  in  D.  last  of 
April  or  first  of  May,  wish  you  would  have  a  purchaser;  think 
I  ought  to  get  $17,000,  as  there  is  quite  a  boom  in  D.  in  real 
estate;"  that  on  April  20th  the  agent  telegraphed  defendant: 
"Lots  sold  for  $16,000  cash,  mail  you  deed  for  signing  to-day;" 
to  which  defendant  replied:  "Won't  sell  for  less  than  $17,000; 
be  there  May  1st;"  on  May  3d,  the  date  of  her  arrival  in  D., 
the  agent  telegraphed  her:  "Sold  property  for  $17,000  *  *  * 
27th  of  April;"  but  she  did  not  receive  the  telegram  until  she 
had  reached  D.  and  repudiated  the  contract;  held  that  the 
agent  had  no  authority  to  sell  the  property.  Sullivan  v.  Leer, 
29  P.  817,  2  Colo.  App.  141. 

Sec.  128.  Advertisement  on  land  as  for  sale  by  agent  insuffi- 
cient to  imply  right  to  sell. 
An  advertisement  put  up  upon  land  offering  it  for  sale,  and 
referring  to  the  owner  and  another  person,  is  not,  in  opposi- 
tion to  a  denial  by  the  owner  of  the  agency  of  such  third  person, 
sufficient  to  imply  in  him  power  to  make  a  sale  of  the  land. 
Mortimer  v.  Cornwell,  1  Hoffm.  (N.  Y.)  Ch.  351. 

Sec.  129.  Authority  to  a  broker  to  find  a  purchaser  gives  no 
right  to  make  a  sale. 
A  letter  to  an  agent  saying:  "As  you  stated  you  could  get 
$30,000  for  the  place  you  occupy  *  *  *  and  if  you  can,  we  will 
sell  at  that  price  *  *  *  and  allow  you  2i^  per  cent,  on  said 
price,"  merely  authorized  the  agent  to  find  a  purchaser,  but 
not  to  sell,  and  a  contract  by  the  agent  to  sell  confers  no  right 
on  the  purchaser.     Grant  v.  Ede,  85  Cal.  418,  24  P.  890 ;  Sim- 


120  AMERICAN    IjAW   REAL   ESTATE   AGENCY. 

mons  V.  Kramer,  13  S.  E.  902,  88  Va.  411;  Lawson  v.  King 
(Wash.  Sup.  '09),  104  P.  1118. 

Sec.  130.    Where  agent  buys  at  inadequate  price,  by  fraud, 
contract  of  sale  will  be  set  aside. 

Whei'e  an  agent  piireha^-c^  property  at  a  grossly  inadequate 
price,  by  the  concealment  of  facts  and  information  relating 
thereto  which  he  was  bound  to  disclose,  the  sale  will  be  set 
aside.     Norris  v.  Taylor,  49  111.  17.     See  also  Sec.  291. 

Sec.  131.  Agent  becoming  purchaser  unknown  to  principal, 
rale  will  be  set  aside. 
"Where  an  agent  becomes  the  purchaser,  without  the  knowl- 
edge of  the  principal,  the  sale  will  be  set  aside.  Fisher's  Ap- 
peal, 34  Pa.  St.  29;  Butler  v.  Haskill,  4  Desau.  (S.  C.)  651; 
Casey  v.  Casey,  14  111.  112.    See  also  Sec.  314. 

Sec.  132.    Contract  to  pay  a  broker  a  commission  on  accepted 
sale,  though  no  effort  required,  upheld. 

A  contract  to  pay  a  broker  a  commission  on  any  accepted 
sale  procured  by  him  will  support  a  recovery  for  such  commis- 
sion, though  it  does  not  bind  the  broker  to  make  any  effort  to 
sell.  Brooks  v.  Leathers,  112  Mich.  463,  70  N.  W.  1099.  Com- 
pare Sees.  552,  585. 

Sec.  133.  Contract  may  require  broker  in  order  to  earn  com- 
missions to  effect  a  sale  at  the  price  limited. 
It  is  clearly  competent  for  the  owner  and  broker  to  agree 
that  the  latter  shall  have  no  compensation  unless  he  shall  effect  a 
sale  at  the  price  limited,  and  the  broker  would  be  bound  by 
such  a  contract.  Hung  erf  ord  v.  Hicks,  39  Conn.  259.  See  also 
Sec.  61. 

Sec.  134.     Sale  at  $350,  when  contract  limited  to  $400,  did 
not  entitle  broker  to  commissions. 

In  an  action  for  commissions  for  effecting  a  sale  of  a  house 
for  defendant,  it  appeared  that  defendant  agreed  to  give 
plaintiff  $75  if  he  should  sell  the  house  for  $500  before  a  cer- 


SALES  OF  REAL  ESTATE.  121 

tain  day,  and  $50  if  he  should  sell  it  for  $400  after  that  time; 
plaintiff  introduced  to  defendant  a  purchaser  who,  after  the 
day  specified,  purchased  the  house  for  $350.  Held,  that  a  judg- 
ment for  plaintiff  for  $35  was  not  sustained  by  the  evidence. 
Blackwell  v.  Adams,  28  Mo.  App.  61 ;  Holhrook  v.  McCarthy,  61 
Cal.  216. 

Sec.  135.     Sale  by  broker  at  $1,500,  after  he  said  he  could 
not  and  asked  lower  terms,  unauthorized. 

Where  an  agent  authorized  to  sell  for  $1,500,  if  at  once, 
stated  he  could  not  and  asked  for  lower  terms,  and  after  a 
month  with  no  other  authority,  he  sold  for  $1,500,  the  sale  was 
unauthorized.     Matthews  v.  Soiile,  12  Neb.  398. 

Sec.  136.  Without  a  special  contract,  broker  to  find  a  pur- 
chaser requires  a  sale  to  be  entitled  to  commissions. 
A  real  estate  broker  employed  by  the  owner,  without  any 
special  agreement,  to  find  a  purchaser,  is  not  entitled  to  claim 
commissions  upon  the  price,  although  he  finds  a  person  willing 
to  purchase  upon  the  terms  fixed,  unless  the  owner  accepts  the 
purchaser  and  an  actual  sale  is  effected;  Pratt  v.  Patterson,  7 
Phila.  (Pa.)  135.  Afirmed  112  Pa.  St.,  475;  this  is  contrary  to 
the  prevailing  doctrine.  Walsh  v.  Hastings,  20  Colo.  243,  38  P. 
324 ;  Gilmore  v.  Bailetj,  103  111.  App.  245 ;  Stephens  v.  Scott,  43 
Kan.  285,  23  P.  555;  Dreishach  v.  Rollins,  39  Kan.  268,  18  P. 
187 ;  Locke  v.  Griswold,  96  Mo.  App.  527,  70  S.  W.  400 ;  Pollard 
V.  Banks,  67  Mo.  App.  187 ;  Crowley  Co.  v.  Meyers,  69  N.  J.  L. 
245,  55  A.  305;  Brumdage  v.  McCormick,  23  N.  Y.  S.  262,  69 
Hun,  65. 

Sec.  137.  Sale  by  one  of  rival  brokers  puts  an  end  to  contract 
with  the  others. 
Owners  of  property  often  leave  it  for  sale  with  several  dif- 
ferent brokers  at  the  same  time;  in  such  cases  the  several 
brokers  have  concurrent  authority  to  sell,  but  a  sale  by  one  of 
them,  with  the  knowledge  of  the  others,  puts  an  end  to  the 
agency  of  the  others  by  removing  the  subject  matter  of  the 
agency;  since  they  can  have  no  further  power  than  their  prin- 
cipal has,  and  he  having,  by  his  agent,  once  sold  the  property 


122  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

to  one  person,  can  not  rightfully  sell  it  again  to  another.    Cush- 
man  v.  Glover,  11  111.  600.    See  also  Sec.  15. 

Sec.  138.     Whether  agent  was  to  be  paid  commissions  on  both 
auction  and  private  sales  question  for  the  jury. 

The  court  properly  charged  that  as  there  are  different  kinds 
of  sales  of  lands,  and  the  contract  does  not  specify  the  kind, 
it  is  for  the  jury  to  determine  from  the  evidence  and  the  letters 
forming  the  contract,  and  tlie  attending  circumstances,  as  to 
whether  it  included  only  auction  sales,  or  both  auction  and 
private  sales,  for  which  plaintiff  was  to  receive  commissions. 
CooUgan  v.  Milwaukee  &  Sault  Ste.  M.  Im.  Co.,  79  Wis.  471, 
48  N.  W.  717. 

Sec.  139.     Sale  by  agent  of  pr9perty  acquired  from  principal 
liable  to  latter  for  profits. 

Where  a  real  estate  agent  makes  a  purchase  of  land  of  his 
principal,  without  his  knowledge,  using  a  third  party  as  a 
medium  through  whom  to  secure  a  deed,  and  then  sells  the 
property  at  an  advance,  he  will  be  held  accountable  to  the 
owner  for  the  profits  realized.  Merriam  v.  Johnson,  86  Minn. 
61,  90  N.  W.  116;  Krhut  v.  Pha-res,  80  Kan.  515,  103  P.  117; 
Mechem  on  Ag.  469. 

Sec.  140.     Sale  without  written  authority  excepted  from  the 
operation  of  the  statute  as  to  employment  of  brokers. 

Where,  in  an  action  by  a  broker  for  commission  on  a  sale 
of  real  estate,  defendant's  answer  admitted  the  employment  of 
plaintiff  as  a  broker,  and  it  appeared  that  the  contract  of 
exchange  of  properties  negotiated  by  plaintiff  was  signed 
through  his  efforts,  these  facts  took  the  case  out  of  the  purview 
of  the  penal  act,  making  it  a  misdemeanor  for  one  to  offer  real 
estate  for  sale  without  written  authority.  Hough  V.  Baldwin, 
99  N.  Y.  S.  545,  50  Misc.  546. 

Sec.  141.     Sale  by  second  agent  to  client  of  first,  at  lower  price, 
latter  not  entitled  to  commissions. 

A  real  estate  agent  employed  to  sell  for  a  specific  price  is 
not  entitled  to  his  compensation  on  production  of  a  person  to 
whom  the  property  is  sold  by  another  agent  at  a  lower  price. 


SALES  OF  REAL  ESTATE.  123 

Woljf  V.  Rosenberg,  67  Mo.  App.  403;  Armes  v.  Cameron,  19 
D.  C.  435 ;  Carlson  v.  Nathan,  43  111.  App.  364 ;  Means  v.  Stone, 
4A  111.  App.  444 ;  Livezy  v.  Miller,  61  Md.  336 ;  Crowning  shield  v. 
Foster,  169  Mass.  237,  47  N.  E.  879 ;  Chandler  v.  Sutton,  5  Daly 
(N.  Y.)  112;  Powell  V.  Anderson,  15  Daly  219,  4  N.  Y.  S.  706: 
De  Zavola  v.  Eozaliner,  84  N.  Y.  S.  969 ;  Friedman  v.  Have- 
myer,  56  N.  Y.  S.  97,  37  App.  Div.  518;  Felman  v.  O'Brien,  51 
N.  Y.  S.  309,  23  Misc.  341 ;  Hendricks  v.  Daniels,  19  N.  Y.  S. 
414;  Powell  V.  Lamh,  1  N.  Y.  S.  431 ;  Land  Mtge.  Bk.  v.  Hargis, 
(Tex.  Civ.  App.  '02),  70  &.  W.  352.    See  also  Sees.  408,  422. 

Sec.  142.  Sale  by  owner  before  a  sale  b>  agent  bars  com- 
missions. 
An  owner  of  land  was  solicited  by  plaintiffs  to  place  it 
in  their  hands  for  sale,  and  wrote  that -he  must  have  a  certain 
fixed  price  for  the  land,  and  that  plaintiffs  could  have  ail  they 
could  get  over  and  above  that;  plaintiffs  found  a  purchaser, 
but  did  not  notify  the  owner  until  he  had  sold  to  another 
person.  Held,  that  the  plaintiffs  were  not  entitled  to  a  commis- 
sion. Helling  v.  Darhy,  71  Kan.  107,  79  P.  1073;  Hodge  v. 
Appellees,  107  N.  Y.  S.  170,  122  App.  Div.  437 ;  Eftinghoff  v. 
Harovitz,  100  N.  Y.  S.  1002,  115  App.  Div.  571.  See  also  Sec. 
15.  English  v.  Wm.  George  Realty  Co.  (T.  C.  A.  '09),  117 
S.  W.  996. 

Sec.  143.  Where  vendor  and  customer  disagree  as  to  terms 
of  sale,  and  broker  acquiesces,  bars  commissions. 
A  real  estate  agent  is  not  entitled  to  commissions  for  a  sale 
of  land,  where,  before  the  completion  of  the  sale  the  parties 
disagree  as  to  terms,  and  the  transaction  is  considered  at  an 
end,  if  the  agent  acquiesces  in  such  rescission  of  the  contract, 
though  the  owner  subsequently  places  it  in  the  hands  of  another 
agent  who  sells  it  on  practically  the  same  terms  to  the  pur- 
chasers secured  by  the  first  agent,  unless  fraud  or  bad  faith 
be  shown.    Oirardieu  v.  Gibson,  122  Ga.  313,  50  S.  E.  91. 

Sec.  144.    Sale  for  cash  is  complied  with  by  broker  selling  to 
be  paid  on  execution  of  deed. 
Where  the  terms  of  a  contract  between  the  owner  of  land 
and  a  broker  who  was  to  procure  a  purchaser,  required  a  cash 


124  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

provided  that  if  the  owner  desired  to  retain  possession  for  a 
time  he  could  do  so  by  paying  interest  on  the  money,  a  cash 
sale  was  provided  for.    Fisher  v.  Bell,  91  Ind.  243. 

Sec.  145.  Broker  selling  contract  of  sale,  vendee  refusing  to 
assign,  entitled  to  commissions. 
"Where  plaintiffs  were  employed  as  brokers  to  sell  a  contract 
for  the  sale  of  real  estate  at  a  profit  of  $1,000  net  to  their 
clients,  and  they  produced  a  purchaser  ready,  able  and  willing 
to  take  the  contract  on  the  terms  prescribed,  but  defendant 
refused  to  assign  the  same,  and  sold  it  to  another,  plaintiffs 
performed  their  obligations  and  were  entitled  to  recover  com- 
missions.   Levy  V.  Trimble,  94  N.  Y.  S.  3,  47  Misc.  394. 

Sec.  146.     Sale  of  public  land,  broker  to  recover  commissions 
must  show  he  effected  attendance  of  purchaser. 

Where  a  real  estate  broker  claims  compensation  for  securing 
the  attendance  of  a  purchaser  at  a  public  land  sale,  he  must 
at  least  show  he  had  some  effect  upon  the  purchaser's  attend- 
ance.   Perkins  v.  Underhill,  103  N.  Y.  S.  25,  118  App.  Div.  170. 

Sec.  147.  Plaintiff  to  plat  and  sell,  and  pay  $150  an  acre  to 
defendant,  was  a  contract  for  the  sale  of  lands. 
A  contract  whereby  defendant  agreed  to  sell  plaintiff,  or 
his  assigns,  certain  lands  for  $150  per  acre,  plaintiff  to  plat 
the  land  and  sell  it,  and  to  pay  the  proceeds  to  defendant  until 
the  latter  had  received  $150  per  acre,  was  a  contract  for  the 
sale  of  lands,  not  a  mere  brokerage  contract  which  defendant 
had  a  right  to  forfeit  by  reason  of  non-performance.  Whipple 
V.  Lee,  46  Wash.  266,  89  P.  712. 

Sec.  148.     Broker  failing  to  sell,  and  owner  by  reducing  price 
selling  to  customer,  not  entitled  to  commissions. 

Where  a  broker's  efforts  to  procure  a  purchaser  fail,  because 
of  the  purchaser's  refusal  to  purchase  on  the  terms  fixed  by 
the  broker,  and  the  negotiations  between  them  are  broken,  the 
fact  that  the  owner  subsequently  negotiated  with  the  customer 
and  effected  a  sale  to  him  in  consequence  of  modifying  the  terms 
thereof,  does  not  entitle  the  broker  to  commissions.  Schaue  v. 
Storch,  107  N.  Y.  S.  26,  56  Misc.  484. 


CHAPTER   III. 
EXCHANGES  OF  REAL  ESTATE. 

Sec.  149.    In   estimating   commissions   on   an   exchange,   the 
actual  and  not  the  trade  value  is  the  basis. 

In  estimating  the  commissions  for  a  sale  of  real  estate,  where 
part  of  the  price  .was  paid  in  town  lots,  the  actual  and  not 
the  trade  value  of  the  property  should  be  considered.  Boyd  v. 
Watson,  101  Iowa,  214,  70  N.  W.  120 ;  Porter  v.  H oiling s worth, 
62  N.  Y.  S.  796,  30  Misc.  628 ;  Colland  v.  Trepet,  70  111.  App. 
228;  Davidson  v.  Wills  (Tex.  Civ.  App.  '06),  96  S.  W.  634.  See 
also  Sec.  185. 

Sec.  150.  Broker  to  effect  exchange  ordinarily  entitled  to 
commissions  on  execution  of  contract  therefor. 
A  broker  employed  to  effect  an  exchange  of  land  ordinarily 
becomes  entitled  to  a  commission  upon  the  execution  of  a  con- 
tract therefor.  Blaydos  v.  Adams,  35  Mo.  App.  526 ;  Shanks  v. 
Michael,  4  Cal.  App.  553,  88  P.  596.    See  also  Sec.  186. 

Sec.  151.    Broker  may  recover  commissions  for  effecting  an 

exchange  though  property  received  not  discussed  in  the 

negotiations. 

Where  a  vendor  employs  a  broker  to  bring  about  an  exchange 

of  realty,  and  the  broker  brings  the  owner  and  another  together, 

he  may  recover  his  commissions  on  an  exchange,  although  the 

property   received   was   not   that   under   discussion   when   the 

broker  last  appeared  in  the  negotiations.     French  v.  McKay, 

181  Mass.  485,  63  N.  E.  1068. 

Sec.  152.    Where  principal  receives  good  title  to  property  con- 
veyed can  not  defeat  broker's  commissions  for  exchange. 
Where  the   principal  in  an  exchange  of  property  actually 
receives  a  good  title  to  the  property  conveyed  to  him,  he  can 

125 


126  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

not  defeat  an  action  by  his  broker  for  commissions  on  the 
ground  that  his  contract  to  sell  was  invalid.  Schlevinger  v. 
Jud,  70  N.  Y.  S.  616,  61  App.  Div.  453. 

Sec.  153.    Broker  supplying  person  willing  to  exchange  must 
show  customer  able  before  he  can  recover  commissions. 

A  real  estate  agent  Avho  finds  a  purchaser  on  the  terms  fixed 
by  the  owner  of  the  property,  such  purchaser  being  ready, 
willing  and  able  to  take  a  conveyance  and  pay  the  purchase 
price,  has  earned  his  commissions;  the  fact  that  the  contract 
involved  an  exchange  of  lands,  does  not  change  the  rule  an- 
nounced. Hcrscher  v.  Wells,  103  111.  App.  418;  Moshowitz  v. 
Hornberger,  38  N.  Y.  S.  114,  15  Misc.  645;  Freedman  v.  Gordon, 
4  Colo.  App.  343,  35  P.  879. 

Sec.  154.     That  customer  does  not  own  property  offered,  no 
ground  for  principal's  refusal,  where  he  has  a  contract 
for  the  purchase  of  the  land  to  exchange. 
Although  the  customer  does  not  own  the  fee  of  the  property 
offered  by  him,  this  is  insuificient  ground  for  the  principal's 
refusal  to  make  the  exchange,  where  the  customer  has  a  con- 
tract  for   the   purchase   of   the   property,    and   is    ready   and 
willing  to  carry  out  the  agreement.     Bauman  v.  Nevins,  65  N. 
Y.  S.  84,  52  App.  Div.  290.     See  also  Sec.  87. 

Sec.  155.     That  land  was  conveyed  to  customer  in  fraud  of 
grantor's  creditors  no  ground  for  refusal  to  exchange. 

The  fact  that  the  land  was  conveyed  to  the  customer  in  fraud 
of  his  grantor's  creditors,  where  such  grantor  had  an  absolute 
title,  is  no  ground  for  the  principal's  refusal  to  complete  the 
exchange,  where  the  creditors  have  not  impeached  the  con- 
veyance. Maso7i  V.  Hinds,  19  N.  Y.  S.  996.  In  another  case  the 
contrary  doctrine  was  sustained.  Moshowitz  v.  Hornberger^  46 
N.  Y.  S.  462,  20  Misc.  558. 

Sec.  156.     To  recover  commissions  for  an  exchange  which  fails 
by  defect  in  customer's  title,  the  broker  must  have  acted 
in  good  faith. 
To  entitle  a  broker  to  a  commission,  where  the  exchange  falls 

through  because  of  a  defect  in  the  customer's  title,  the  broker 


EXCHANGES   OF   REAL   ESTATE.  127 

must  have  acted  in  good  faith.  Games  v.  Howard,  180  Mass. 
569,  63  N.  E.  122;  Roche  v.  Smith,  176  Mass.  595,  58  N.  E.  152; 
Rockwell  V.  Newton,  44  Conn.  333. 

Sec,  157.     Broker  does  not  earn  commissions  for  an  exchange 
hj  producing  an  irresponsible  customer. 

A  broker  employed  to  carry  out  an  exchange  of  lands  does 
not  earn  his  commissions,  where  he  brings  to  his  employer  a 
person  who  assumes  to  contract  as  owner,  although  he  is  not,  of 
which  fact  the  broker  knows,  and  within  the  few  days  allowed 
for  performance  proves  unable  to  perform  his  contract  and  is 
irresponsible.  Burnham  v.  Upton,  174  Mass.  408,  54  N.  E.  873 ; 
Norman  v.  Reuther,  54  N.  Y.  S.  152,  25  Misc.  161.  See  also 
Sec.  1053b. 

Sec.  158.     Ability  to  make  exchange  does  not  depend  on  finan- 
cial responsibility  but  on  ownership  of  the  property. 

The  broker  must  show  that  the  purchaser*  is  able  to  make  the 
exchange,  and  this  ability  is  not  proved  by  the  mere  production 
of  deeds  on  his  part,  without  some  showing  that  he  also  had 
title  to  the  properties  he  was  willing  to  deed.  His  ability  does 
not  depend  upon  general  financial  standing,  but  upon  his  being 
the  owner  of  the  land  it  was  proposed  to  exchange.  Herscher 
y.  Wells,  103  111.  App.  418. 

Sec.  159.     Formal  contract  to  convey  property  in  exchange 
not  sufficient  prima  facie  evidence  of  title  thereto. 

The  customer's  ability  is  not  proved  by  the  mere  production 
of  deeds  on  his  part,  without  some  showing  that  he  also  had 
title  to  the  property  he  was  willing  to  deed.  Herscher  v.  Wells, 
103  111.  App.  418.    Compare  Sec.  161. 

Sec.  160.     Petition  alleging  failure  to  make  exchange  defective 
in  alleging  contract  to  procure  a  purchaser. 

Where  a  petition  alleges  the  failure  of  defendant  to  make 
an  exchange  of  property  procured  by  the  plaintiff,  it  was  held 
defective  in  alleging  a  contract  to  procure  a  purchaser,  with 
an  implied  contract  to  pay  the  reasonable  value  of  the  services, 
consequently  there  was  no  breach  of  contract  for  which  the 


128  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

defendant  was  liable  in  damages  to  the  plaintiff,  and  the  de- 
murrer was  properly  sustained.  Mulhall  v.  Bradley,  etc.,  Co., 
63  N.  Y.  S.  732,  50  App.  Div.  179. 

Sec.  161.    Deed  of  conveyance  competent  to  prove  exchange. 

The  defendant  having  assented  to  the  terms  of  the  written 
agreement  to  exchange,  the  agreement  and  the  deed  of  con- 
veyance were  competent  evidence  of  the  sale  and  the  considera- 
tion thereof.  Hewitt  v.  Brown,  21  Minn.  163;  Folinshee  v. 
Sawyer,  157  N.  Y.  196,  51  N.  E.  994;  Levy  v.  Coogan,  9  N.  Y.  S. 
534,  16  Daly  137;  Cannon  v.  Castleman,  24  Ind.  App.  188,  55 
N.  E.  111.    Compare  Sec.  159. 

Sec.  162.  Participating  without  emplojrment  in  an  exchange, 
broker  not  entitled  to  commissions. 
One  participating  without  employment  or  authority  in  a 
transaction  resulting  in  an  exchange  of  property  is  not  entitled 
to  a  commission.  Merrill  v.  Latham,  8  Colo.  App.  263,  45  P. 
524.     See  also  Sec.  17. 

Sec.  163.  One  may  recover  from  party  in  default  in  an  ex- 
change the  commissions  paid  to  the  broker. 
Where  an  owner  of  real  estate  has  contracted  to  exchange  it 
for  property  owned  by  another,  whom  a  broker  he  employed 
has  produced,  the  contract  providing  that  the  land  should  be 
conveyed  by  each  to  the  other  within  twenty  days  by  a  good 
and  sufificient  warranty  deed,  such  owner  may  recover  from 
the  customer  the  amount  of  the  commissions  paid  to  the  broker, 
where  such  customer  is  unable  to  convey  a  good  title  to  his 
property.  Roche  v.  Smith,  176  Mass.  595,  58  N.  E.  152 ;  Volke 
v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011. 

Sec.  164.  Where  pieces  of  property  are  given  for  others  and 
the  difference  paid  in  cash,  a  sale  and  not  an  exchange. 
A  transaction  by  which  certain  pieces  of  property  are  given 
for  others,  a  definite  price  being  put  on  each,  and  the  difference 
paid  in  cash,  is  a  sale  and  not  «n  exchange.  Thornton  v.  Moody 
(Tev.  Civ.  App.  '93),  24  S.  W.  331;  Ullman  v.  Land,  84  S.  W. 
294,  37  Tex.  Civ.  Apn.  422. 


EXCHANGES   OF   REAL   ESTATE.  129 

Sec.  165.  Broker  making  exchange,  where  principal  made  con- 
tract, not  responsible  for  misrepresentations  made  in  good 
faith. 

Where  a  real  estate  broker  employed  to  sell  land  negotiates 
an  exchange  for  other  lands,  his  principal  making  the  contract, 
there  is  no  legal  duty  devolving  upon  the  broker  to  ascertain 
correctly  the  facts  affecting  the  value  of  the  lands  received  in 
exchange,  and  for  misrepresentations  made  to  his  principal  in 
good  faith  concerning  the  same  he  is  not  responsible.  Coe  v. 
Ware,  40  Minn.  404,  42  N.  W.  205.    See  also  Sec.  454. 

Sec.  166.  Error  to  prevent  defendant  showing  that  broker  to 
effect  exchange  was  secretly  employed  by  other  party. 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
on  an  exchange  of  property  effected  by  him,  it  appearing  that 
plaintiff  was  in  the  employ  of  both  parties  to  the  exchange,  the 
court  erred  in  excluding  the  testimony  of  the  defendant  tend- 
ing to  show  that  it  was  ignorant  of  the  double  employment  of 
plaintiff,  of  which  plaintiff  testified  that  defendant  was  in- 
formed.   Gondii  V.  Sill,  18  N.  Y.  S.  97. 

Sec.  167.  Power  to  sell  land  does  not  include  power  to  lease 
or  exchange  it. 

A  power  to  sell  land  does  not  include  the  power  to  lease  or 
exchange  it.  Trudo  v.  Anderson,  10  Mich.  357 ;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Reese  v.  Medlock,  27  Texas  120; 
Lucas  V.  County  Rec.  Cass  Co.,  75  Neb.  351,  106  N.  W.  217. 

Sec.  168.  Styling  himself  agent  for  others  in  a  contract  of 
exchange  bound  himself. 
Where  a  person  in  a  contract  for  the  exchange  of  lands  styled 
himself  "agent  for  others,"  but  without  stipulating  in  their 
names  or  undertaking  to  bind  them  as  their  agent,  it  was  held 
that  he  was  named  as  agent  by  way  of  recital  only,  and  that 
he  was  personally  liable  on  the  contract  and  entitled  to  its 
benefits.  Couch  v.  Ingersoll,  2  Pick.  (Mass.)  292.  See  also 
Sec.  383. 


130  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  169.  Exchange  made  by  owner  and  broker  did  nothing, 
latter  not  entitled  to  commissions. 
A  broker  can  not  recover  on  a  contract  fliat  he  should  have 
commissions  for  effecting  an  exchange  of  property  with  another, 
where  he  did  nothing  under  the  contract  and  does  not  show  that 
he  was  excused  from  rendering  services  under  his  employment, 
although  the  trade  was  consummated  by  the  owner.  Walton  v. 
McMorrow,  57  N.  Y.  S.  691,  39  App.  Div.  667.  See  also 
Sees.  19,  21. 

Sec.  170.  Where  an  exchange  was  wrongfully  broken  off  by 
principal,  broker  entitled  to  commissions. 
Plaintiff  employed  by  defendant  to  sell  or  trade  certain  land 
for  him  procured  an  agreement  for  a  trade  with  the  owner 
of  other  lands,  but,  before  the  deeds  were  delivered  by  the 
parties,  on  plaintiff's  claiming  commissions  from  agents  of 
defendant,  to  whom  he  had  meantime  given  control  of  all  his 
real  estate,  they  declared  the  trade  "off."  Held,  that  plaintiff 
could  recover  commissions  from  defendant  if  such  exchange 
was  so  broken  off  or  rescinded  by  his  authority.  Blaydos  v. 
Adams,  35  Mo.  App.  526. 

Sec.  171.  Meaning  of  term  "net  rental"  of  property  received 
in  exchange. 
Where  a  contract  between  the  owner  of  property  and  a  broker 
who  undertook  to  bring  about  an  exchange  for  certain  other 
property,  provided  that  such  property  should  have  an  annual 
net  rental  of  a  specified  sum,  it  meant  that  it  should  yield  that 
amount  above  all  liabilities  to  the  owner,  such  as  taxes,  assess- 
ments, etc.  McVicker,  etc.,  Realty  Co.  v.  Garth,  97  N.  Y.  S. 
640,  111  App.  Div.  294. 

Sec.  172.  Broker  for  compensation  has  no  interest  or  title 
in  either  of  the  properties  exchanged. 
A  broker  bringing  about  an  exchange  of  properties  between 
the  owners  thereof,  pursuant  to  an  agreement  with  one  cf  them 
stipulating  that  he  will  pay  to  the  broker  certain  sums  on  the 
signing  of  a  contract,  passing  of  the  title,  and  on  a  sale  of 


EXCHANGES   OF   REAL   ESTATE.  .       131 

the  acquired  land,  has  no  title  or  interest  in  either  of  the  prop- 
erties. Lindheim  v.  Cen.  Nat.  Realty,  etc.,  Co.,  97  N.  Y.  S. 
619,  111  App.  Div.  275;  Mitschen  v.  Swensen  (Or.  Sup.  '09), 
99  P.  277.     See  Sec.  16. 

Sec.173.    Mere  offer  by  other  party  to  pay  broker  does  not 
show  employment  where  broker  did  not  accept. 

A  statement  by  one  party  to  an  exchange  of  real  estate  that 
he  had  offered  to  pay  the  broker  employed  by  the  other  party  a 
commission  does  not  show  that  the  broker  accepted  employment 
by  both  parties,  where  he  admits  the  offer,  but  states  that  he 
did  not  accept  it.  Lehotvitz  v.  Colligan,  45  N.  Y.  S.  373,  18 
App.  Div.  624.    See  Sec.  72. 

Sec.  174.    Agreement   by   broker    to    wait   for    payment    of 
accrued  commissions  unsupported  by  a  consideration. 

In  an  action  by  a  broker  to  recover  commissions  on  an 
exchange  of  property  effected  by  him,  whether  a  written  agree- 
ment by  plaintiff  to  wait  for  his  commissions  until  title  closed, 
was  signed  before  or  after  the  signing  of  the  contract  of  ex- 
change was  immaterial,  where  all  the  terms  of  the  written 
contract  of  exchange  were  fully  agreed  on,  on  the  preceding 
day,  the  subsequent  agreement  to  wait  for  the  accrued  commis- 
sions being  unsupported  by  a  consideration.  Hough  v.  Bald- 
win, 99  N.  Y.  S.  545,  50  Misc.  546.    See  also  Sec.  19. 

Sec.  175.  Broker  effecting  exchange  entitled  to  commissions 
although  terms  were  changed  by  the  parties. 
A  broker  employed  to  procure  a  purchaser  for  premises  at  a 
specified  price,  part  cash,  and  the  balance  secured  by  mort- 
gage, procured  a  third  person  to  enter  into  a  contract  with  the 
husband  of  the  owner  for  an  exchange  of  the  premises  for 
other  property;  the  owner  conveyed  the  premises  to  the  pur- 
chaser pursuant  to  the  arrangement.  Held,  that  the  broker  was 
entitled  to  his  commission,  though  the  transfer  was  made  on 
other  terms  than  those  originally  proposed,  and  though  the  con- 
veyance was  executed  after  the  expiration  of  the  time  fixed  to 
procure  a  purchaser.     Southwick  v.  Swavienzki,  99  N.  Y.  S. 


132      ^  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

1079,  114  App.  Div.  681 ;  Reid  v.  McNirney,  128  Iowa  350,  103 
N.  W.  1001 ;  Shanks  v.  Michael,  4  Cal.  App.  553,  88  P.  596. 

Sec.  176.    Contract  for  effecting  exchanges  held  to  be  severable. 

Evidence  was  held  conclusive  that  a  contract  by  which  ap- 
pellant agreed  to  pay  respondent  a  commission  of  one  dollar 
per  acre  for  procuring  contemplated  exchanges  of  real  .estate, 
was  not  an  entire  but  a  severable  contract;  the  respondent  was 
entitled  to  his  commissions  upon  effecting  one  of  the  contem- 
plated trades,  and  the  court  did  not  err  in  so  instructing  the 
jury.  Goodspeed  v.  Miller,  98  Minn.  457,  108  N.  W.  817.  See 
also  Sec.  496.     Compare  Sec.  493.     Mechem  on  Ag.,  Sec.  634. 

Sec.  177.     Exchange  defeated  by  existence  of  lease  broker  not 
entitled  to  commissions. 

Plaintiff,  a  real  estate  broker,  secured  a  customer  to  take 
defendant's  premises  in  exchange  for  his  own,  and  to  pay 
defendant  for  the  difference  in  the  value  of  the  equities;  no 
time  was  stipulated  as  to  when  the  exchange  should  take  effect, 
and  a  tenant  in  defendant's  premises  refused  to  vacate  without 
the  statutory  ninety  days'  notice,  and  defendant  refused  to 
perform  unless  the  purchaser  would  take  subject  to  the  lease; 
this  the  latter  refused  to  do,  and  the  transaction  was  not  con- 
summated. Held,  that  since  the  plaintiff  knew  of  the  existence 
of  the  lease,  he  had  not  perfected  a  contract  for  exchange  so  as 
to  be  entitled  to  the  commissions.  Mainhart  v.  Paerschke,  65 
N.  Y.  S.  494,  32  Misc.  97 ;  Low  v.  Woodbury,  95  N.  Y.  S.  336, 
107  App.  Div.  298. 

Sec.  178.  Interfering  broker  not  entitled  to  commissions  for 
effecting  an  exchange. 
A  letter  containing  an  offer  for  certain  real  estate  was  sent 
to  the  supposed  owner  thereof,  who  turned  it  over  to  a  broker ; 
the  latter  forwarded  it  to  the  real  owner,  with  a  letter  sug- 
gesting that  said  one  was  the  agent  of  the  one  making  the 
offer.  Held,  that  the  broker  was  entitled  to  no  commissions 
on  an  exchange  subsequently  effected  as  a  result  of  the  negotia- 
tions. Hamilton  v.  Gillander,  49  N.  Y.  S.  663,  26  App.  Div. 
156 ;  Shapiro  v.  Shapiro,  103  N.  Y.  S.  305,  117  App.  Div.  817. 
See  See.  70. 


EXCHANGES  OF  REAL  ESTATE.  133 

Sec.  179.  iExchange  defeated  by  failure  to  furnish  abstract  of 
title,  broker  not  entitled  to  commissions. 
Plaintiff,  employed  by  defendant  to  find  a  purchaser  for  a 
stock  of  goods,  found  a  person  who  was  willing  to  buy,  if  real 
estate  which  he  had  was  accepted  in  payment ;  defendant  made  a 
written  proposition  in  which  he  agreed  to  accept  such  real  estate 
in  part  payment,  provided  the  purchaser,  among  other  things, 
furnished  an  abstract  showing  title  in  him;  the  purchaser  ac- 
cepted the  offer,  but  failed  to  furnish  an  abstract.  Held,  that 
the  acceptance  was  not  such  as  to  entitle  the  plaintiff  to  his 
commissions  as  having  found  a  purchaser  able  and  willing  to 
buy  on  the  terms  proposed.  Marple  v.  Ives,  111  Iowa  602,  82 
N.  W.  1017.    See  also  See.  556. 

Sec.  180.     Purchaser  able  to  give  title  to  property  offered  in 
exchange,  broker  entitled  to  commissions. 

A  broker  procuring  a  purchaser  able  to  give  title  to  the 
property  agreed  on  to  be  conveyed  by  him  as  part  of  the  trade, 
on  the  day  fixed  to  carry  out  the  trade,  is  entitled  to  his  com- 
missions, though,  at  the  time  the  trade  was  arranged,  the  pur- 
chaser did  not  have  title  thereto.  Ravenscroft  v.  Chesmore 
(Iowa  Sup.  '06),  108  N.  W.  465.    See  also  Sec.  87. 

Sec.  181.  Mistake  in  description  defeated  broker's  right  to 
commissions  for  effecting  an  exchange. 
Defendant  agreed  to  pay  plaintiff  a  commission  for  finding  a 
purchaser  with  whom  he  could  exchange  his  stock  of  goods  for 
land,  and  the  plaintiff  secured  a  contract  with  P.  to  exchange 
a  certain  tract  of  land  for  defendant's  stock  of  goods,  but  by  a 
mistake  of  P.,  the  land  described  in  the  contract  was  not  owned 
by  him;  it  did  not  appear  that  defendant  was  aware  of  the 
mistake.  Held,  that  plaintiff  was  not  entitled  to  a  commission. 
Snyder  v.  Fidler,  135  Iowa  304,  112  N.  W.  546 ;  Ilensel  v.  Witt, 
134  Wis.  55,  113  N.  W.  1093.    See  also  Sees.  59,  476. 

Sec.  182.     Failure  of  conditional  agreement  in  contract  of  ex- 
change defeated  broker's  right  to  commissions. 

Where  a  real  estate  agent  and  the  parties  to  the  proposed 
exchange  of  properties  understood  that  the  agreement  for  ex- 


134  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

change,  and  any  right  to  commissions,  was  dependent  on 
defendants  acquiring  outstanding  interests  in  the  property  they 
proposed  -to  exchange,  and  that  their  acceptance  of  the  terms 
of  the  exchange  offered  by  the  other  parties  was,  in  fact,  con- 
ditional on  their  acquiring  such  interests,  commissions  can  not 
be  recovered  of  defendants,  their  failure  to  acquire  such  inter- 
ests not  having  been  by  their  procurement  or  connivance. 
Rieger  v.  Merrill,  125  Mo.  App.  541,  102  S.  W.  1072.  See  also 
Sec.  45. 

Sec.  183.  Misrepresentation  by  agent  to  effect  exchange  de- 
feated right  to  commissions. 
Where  a  real  estate  agent,  acting  for  both  parties  with  their 
knowledge  and  consent  in  an  ex(iliange  of  lands,  misrepresented 
to  one  of  the  parties  that  the  other  was  the  owner  of  a  certain 
farm  and  rated  it  at  a  certain  value,  when  he  knew  that  the 
real  owner  was  offering  to  sell  for  much  less,  such  party  was 
entitled  to  discharge  him  as  agent,  and  he  was  not  entitled  to 
any  commissions  for  an  exchange  of  properties  thereafter  made 
between  the  parties.  Featherston  v.  Trone,  82  Ark.  381,  102 
S.  W.  196.    See  also  Sees.  313,  435,  451.    Compare  Sec.  165. 

Sec.  184.  In  action  for  commissions  for  an  exchange,  receipt 
in  another  transaction  inadmissible. 
In  an  action  by  real  estate  brokers  for  a  commission  for 
negotiating  an  exchange  of  defendant's  property,  which  defend- 
ant refused  to  carry  out,  a  receipt  given  by  one  of  the  plaintiffs 
to  defendant  for  a  commission  paid  him  by  defendant  for 
effecting  a  subsequent  exchange  of  the  same  property  with 
another  purchaser  is  inadmissible,  because  foreign  to  the  issues. 
Goodman  v.  Linetzky,  107  N.  Y.  S.  50. 

Sec.  185.     Exchange  for  certain  amount  to  boot,  broker  entitled 
to  commissions  upon  whole  value  of  property. 

Where  a  broker  is  entitled  to  commissions  on  a  sale  of  real 
estate,  and  the  land  is  disposed  of  by  an  exchange  for  a  cer- 
tain amount  to  boot,  his  commission  is  to  be  estimated  upon 
the  whole  value  of  the  property.  Carle  v.  Parent,  Montreal 
(Can.)  L.  Rep.,  5  Q.  B.  451.    See  also  Sec.  149. 


EXCHANGES   OP    REAL   ESTATE.  135 

Sec.  186.    Broker  entitled  to  commissions  on  effecting  binding 
contract  for  an  exchange. 

Where  defendant,  through  an  offer  by  plaintiff,  after  exami- 
nation of  a  parcel  of  land,  executed  a  contract  with  its  owner 
to  exchange  his  realty  for  such  parcel,  but  afterwards  refused 
to  execute  a  deed,  plaintiff  is  entitled  to  his  agreed  commis- 
sions, in  the  absence  of  evidence  that  it  was  dependent  upon 
the  execution  of  the  executory  contract.  Brown  v.  Grossman, 
65  N.  Y.  S.  1126,  53  App.  Div.  640.     See  Sees.  150,  188. 

Sec.  187.     Broker  barred  commissions  on  failure  of  exchange 
on  account  of  encroachments. 

Where  defendant  entered  into  a  contract  for  the  exchange  of 
real  estate,  provided  that  if  the  other  party  to  the  agreement 
rejected" the  title  on  the  ground  of  bay-window  and  stoop-ledge 
encroachments,  the  deposit  paid  by  each  party  should  be  re- 
turned in  full  of  all  claims,  of  which  provision  plaintiff,  a 
broker  employed  l)y  defendant,  knew,  plaintiff  was  not  enti- 
tled to  the  commission  on  the  rejection  of  defendant's  title 
because  of  such  encroachments.  Hough  v.  Baldwin,  99  N.  Y.  S. 
545,  50  Misc.  546. 

Sec.  188.  Broker  entitled  to  commissions  on  producing  one 
willing  to  exchange. 
Where  a  broker  was  employed  to  procure  a  purchaser  or  one 
willing  to  exchange  property,  his  contract  was  performed  when 
he  procured  a  purchaser  able  and  willing  to  purchase  or  ex- 
change, and  the  fact  that  he  made  any  material  misrepresenta- 
tions as  to  the  property  exchanged  for  his  clients,  was  no  bar 
to  his  recovery  of  his  commissions.  Nichols  v.  Whitacre,  112 
Mo.  App.  692,  87  S.  W.  594.  See  also  Sees.  150,  186.  Shepherd- 
Teague  Co.  v.  Herman  (Cal.  App.  10),  107  P.  622. 

Sec.  189.  Proof  necessary  for  broker  to  recover  commissions 
on  failure  to  consummate  exchange. 
An  owner  employed  a  broker  to  procure  a  purchaser  for  his 
land  on  specified  terms;  the  broker  produced  a  third  person 
who  offered  to  buy  and  to  convey  certain  lands  in  exchange 
therefor,  and  to  pay  a  specified  sum  in  addition.     Held,  that 


136  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

the  broker,  in  order  to  recover  his  commissions,  may  prove 
that  the  owner  and  the  third  person  reached  an  agreement,  and 
that  the  third  person  had  title  to,  or  was  authorized  to  convey 
the  land  offered  in  exchange,  and  that  he  was  financially  able 
to  respond  in  damages  on  the  failure  of  title.  Blackledge  v. 
Davis,  129  Iowa  591,  105  N.  W.  1000.  Compare  Herscher  v. 
Wills,  103  lU.  App.  418. 

Sec.  190.  Execution  of  contract  to  convey  prima  facie  evi- 
dence of  title  thereto. 
Proof  that  a  party  has  executed  a  formal  contract  to  convey 
certain  property  in  exchange  for  other  property  is  sufficient 
prima  facie  evidence  of  his  title  thereto,  in  an  action  by  a 
broker  for  commissions  on  effecting  an  exchange.  Muscowitz  v. 
Hornherger,  46  N.  Y.  S.  462,  20''Misc.  558.  Compare  Herscher 
V.  Wills,  103  111.  App.  418. 

Sec.  191.  Broker  earns  commissions  when  both  parties  agree 
on  the  terms  of  an  exchange. 
A  broker  employed  to  secure  an  exchange  of  land  for  a  stock 
of  merchandise  earns  his  commissions,  when  the  owner  of  the 
stock  and  the  owner  of  the  land  procured  by  the  broker  agree 
on  the  terms  of  exchange,  the  owner  of  the  stock  having  the 
right  to  reject  the  proposition  for  exchange,  if  acting  in  good 
faith.     Davidson  v.  Wills  (Tex.  Civ.  App.  '06),  96  S.  W.  634. 

Sec.  192.  Broker's  right  to  commissions  not  affected  by  failure 
of  one  party  to  perform  contract  of  exchange. 
A  broker's  right  to  commissions  for  procuring  the  execution 
of  a  contract  for  an  exchange  of  property  being  absolute,  when 
the  written  contract  of  exchange  was  entered  into,  was  not 
affected  by  the  non-completion  of  the  contract  caused  by 
the  inability  or  unwillingness  of  one  of  the  parties  to  perform. 
Tieck  V.  McKenno,  101  N.  Y.  S.  317,  115  App.  Div.  701.  See 
also  Sees.  458,  460,  464. 

Sec.  193.     Failure  to  secure  transfers  by  parties  to  exchange 
defeated  broker's  right  to  commissions. 

An  owner  employed  a  broker  to  procure  a  purchaser  for 
described  real  estate  for  a  specified  sum  at  a  stated  commis- 


EXCHANGES   OF   REAL   ESTATE.  137 

sion;  the  broker  procured  a  third  person  to  make  an  offer 
which  the  owner  accepted,  and  the  two  entered  into  a  contract 
for  an  exchange  of  property;  the  broker  testified  that  the 
owner  stated  that  if  he  could  get  a  third  person  to  agree  to 
give  a  specified  number  of  lots  and  a  mortgage  back  of  a 
specified  sum  the  owner  would  pay  a  specified  sum  for  com- 
missions; the  agreement  for  the  exchange  was  not  carried  out 
because  of  a  defect  in  the  title  of  the  third  person,  which  the 
broker  attempted  to  cure.  Held,  that  the  broker  w^as  not  enti- 
tled to  commissions,  none  being  earned  unless  a  transfer  was 
made.  Keating  v.  Haleij,  147  Mich.  279,  110  N.  W.  943;  13 
D.  L.  N.  1035.    See  also  Sees.  119,  224,  272,  449. 

Sec.  194.    Value  of  land  exchanged  shown  to  enable  jury  to 
determine  whether  commission  earned  and  how  much. 

Where,  in  an  action  by  a  broker  for  commissions,  the  evidence 
showed  that  he  was  to  receive  $2  per  acre  from  the  owner,  if 
he  received  for  his  land  $16  per  acre,  or  the  amount  per  acre 
in  excess  of  $14,  in  case  the  owner  did  not  receive  $16 ;  that 
the  owner  exchanged  his  land  for  other  land,  and  that  the  eon- 
tract  for  the  exchange  fixed  the  price  of  the  owner's  land  at 
$16  per  acre  and  the  land  received  at  $45  per  acre,  the  owner 
could  show  the  value  of  the  land  received  in  exchange  to  enable 
the  jury  to  determine  whether  or  not  he  had  received  more 
than  $14  per  acre  for  his  land.  Steers  v.  Gingery  (S.  D.  '07), 
110  N.  W.  774.     See  also  Sec.  1076. 

Sec.  195.  Broker  not  entitled  to  commissions  for  effecting 
an  exchange  where  party  does  not  show  good  faith. 
A  contract  of  exchange  negotiated  by  a  broker  incompletely 
executed  by  the  broKer's  principals,  does  not  show  willingness 
to  perform  by  the  alleged  purchaser,  where  the  form  of  the 
contract  and  the  whole  of  the  signatures  thereto  shew  that  some 
of  the  conditions  upon  which  the  purchaser  insisted  could  not 
be  complied  with.  Schulte  v.  Meehan,  133  111.  App.  491 ;  Mann 
V.  Griswold,  112  N.  Y.  S.  271,  59  Misc.  239. 


CHAPTER   IV. 

LEASES. 

Sec.  196.     Value  of  services  of  broker  in  negotiating  leases. 

The  value  of  the  services  of  a  real  estate  broker  for  negoti- 
ating a  lease  can  not  be  measured  by  the  value  of  the  fee, 
regardless  of  the  terms  of  the  lease.  Dauhe  v.  Nessler,  50  111. 
App.  166;  Grosscup  v.  Downey,  105  Md.  273,  65  A.  930.  He 
is  entitled,  in  the  absence  of  a  special  contract  therefor,  to  a 
reasonable  compensation,  and  this  is  usually  based  on  the  amount 
of  rental.  Schultz  v.  Goldman,  7  Ari.  279,  64  P.  425 ;  Hull  v. 
Cardivell,  2  N.  Y.  City  Ct.  76. 

Sec.  197.  Lessor  can  not  arbitrarily  refuse  to  accept  lease  and 
defeat  broker's  right  to  commissions. 
Under  an  agreement  to  pay  commissions  for  negotiating  a 
"satisfactory  lease,"  the  lessor  can  not  arbitrarily  refuse  to 
accept  a  lease  negotiated  and  thereby  defeat  a  claim  for  com- 
missions. Mullaly  V.  Greenwood,  127  Mo.  138,  29  S.  W.  1001 ; 
See  also  Sees.  374,  454. 

Sec.  198.  Broker  to  sell,  securing  one  willing  to  lease,  not 
entitled  to  commissions. 
An  agreement  to  pay  a  commission  to  a  real  estate  agent  if 
he  should  find  a  purchaser  for  certain  real  estate  does  not 
entitle  him  to  recover  when  he  only  finds  a  person  who  is 
willing  to  take  a  lease  for  ten  years  with  the  privilege  of  pur- 
chase, the  venders  being  executors  and  not  authorized  by  the 
will  to  lease  the  property.  Wooley  v.  Schwall,  5  Ohio  Cir.  Ct. 
76,  3  Ohio  Cir.  Dec.  39. 

Sec.  199.     Option  at  specified  rental  not  exercised  by  taking 
lease  at  a  lower  rental. 
An  option  to  take  a  lease  at  a  specified  rental  is  not  exer- 
cised by  securing  a  lease  at  a  lower  rental.     Curtis  v.  Nixon, 
24  L.  T.  R.  (Eng.),  N.  S.  706.    See  also  Sec.  101. 
138 


LEASES.  '  189 

Sec.  200.  Lease,  with  privilege  of  purchase,  held  equivalent 
to  a  sale. 
A  contract  which  ran  for  one  year,  provided  that  if  plaintiff, 
a  real  estate  broker,  effected  a  sale  of  defendant's  property, 
he  was  to  receive  a  certain  commission,  and  in  case  a  sale  was 
made  without  his  aid,  or  the  property  was  withdrawn  from 
sale,  one-half  such  commission.  Held,  that  a  lease  by  defendant 
for  five  years,  with  the  exclusive  privilege  to  the  lessee  of  pur- 
chasing at  a  fixed  price,  at  any  time  before  the  expiration  of 
the  lease,  was  a  sale  within  the  meaning  of  the  contract  entitling 
plaintiff  to  one-half  the  commissions.  Rucker  v.  Hall,  105  Cal. 
425,  38  P.  962. 

Sec.  201.  Charge  properly  refused  which  implied  no  leases 
were  made  without  a  broker. 
In  an  action  to  recover  brokerage  for  effecting  a  lease  of  real 
property,  plaintiff  didliot  allege  that  he  had  been  employed  by 
defendant,  but  alleged  that  defendant  accepted  plaintiff's  serv- 
ices, with  knowledge  that  they  had  been  rendered.  Held,  that 
it  was  proper  to  refuse  plaintiff's  request  to  charge  that,  while 
the  owner  was  entitled  to  know  that  the  broker  had  been  instru- 
mental in  sending  the  tenant,  yet,  when  he  knows  that  the 
tenant  has  received  information  of  his  intention  to  let,  and  his 
price,  the  owner  is  bound  to  inquire  where  the  tenant  got  the 
information,  as  such  instruction  pre-supposes  that  leases  are 
never  made  without  the  intervention  of  brokers,  and  that  no 
information  could  be  received  as  to  what  property  was  to  be  let 
except  through  brokers.  Tinkham  v.  Knox,  21  N.  Y.  S.  954, 
2  Misc.  579. 

Sec.  202.    Power  to  sell  does  not  include  power  to  lease. 

A  power  to  sell  land  does  not  include  the  power  to  lease  or 
exchange  it.  Trudo  v.  Anderson,  10  Mich.  358;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Eeese  v.  Medlock,  27  Texas  120. 

Sec.  203.    Agent  of  lessee  secretly  securing  new  term  to  him- 
self holds  as  trustee. 
A  confidential  agent  of  the  lessee,  before  the  lease  expired, 
secretly  procured  a  lease  for  a  new  term  to  himself,  at  a  larger 


140  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

rent,  denying  to  the  principal  that  he  was  competing  for  the 
lease.  Held,  that  the  agent  must  hold  the  lease  as  trustee  for 
the  principal.  Davis,  v.  Hamlin,  108  111.  39 ;  Gower  v.  Andrew, 
59  Cal.  119. 

Sec.  204.  Broker  entitled  to  commissions  for  findin£'  a  respon- 
sible lessee  on  prescribed  terms. 
To  entitle  a  broker  to  commissions  for  finding  a  lessee,  he 
must  procure  a  customer  able,  ready  and  willing  to  take  the 
premises  on  the  terms  proposed  by  the  principal.  ClarJc  v.  Day- 
ton, 87  Minn.  454,  92  N.  W.  327. 

Sec.  204a.     To  earn  commissions  for  procuring  tenant  broker 
must  negotiate  a  lease  which  the  principal  can  perform. 

To  entitle  a  broker  employed  to  procure  a  tenant  for  real 
estate  to  commissions,  he  must  negotiate  an  agreement  for  a 
lease  which  his  principal  can  perform.  Mann  v.  Griswold,  112 
N.  Y.  S.  271,  59  Misc.  239. 

Sec.  205.  Power  to  do  all  things  concerning  my  real  estate 
confers  authority  to  lease. 
A  power  authorizing  an  attorney  "to  superintend  my  real 
and  personal  estate,  to  make  contracts,  and  in  general  to  do 
all  things  that  concern  my  interest  in  any  way,  real  and  per- 
sonal, whatsoever,"  etc.,  empowers  the  attorney  to  convey  real 
estate,  and  therefore  to  make  a  lease  with  the  privilege  of  pur- 
chase.   De  Rutte  v.  Muldreiv,  16  Cal.  505. 

Sec.  206.  Waiver  of  tenant's  privilege  of  renewal  of  lease, 
secured  by  agent,  binds  principal. 
Where  a  landlord  accepted  the  waiver  of  the  tenant's  priv- 
ilege of  renewal  procured  by  his  agent  from  the  tenant,  and 
acted  upon  the  same,  he  was  estopped  to  deny  the  agent's  au- 
thority in  the  premises.  Madison  Ave.  v.  Osgood,  18  N.  Y. 
S.  126. 

Sec.  207.     Broker  employed  to  collect  rents  not  entitled  to 
commissions  for  securing  a  lease. 
A  real  estate  agent  employed  to  collect  the  rents  on  a  lease 
taken  in  his  name  for  the  owners,  but  not  negotiated  by  him. 


LEASES.  141 

is  not  entitled  to  a  commission  for  the  whole  life  of  the  lease, 
but  only  to  commissions  for  collecting  the  rent  while  employed 
for  that  purpose  by  the  owners.  Lucas  v.  Jackson,  140  Pa.  St. 
122,  21  A.  310.    See  also  Sec.  212.    Compare  Sec.  456. 

Sec.  208.  Broker  for  tenant  has  no  claim  on  lessor  for  com- 
missions. 
A  real  estate  broker  who,  at  the  inception  of  negotiations 
for  a  lease,  and  during  their  continuance,  represented  the  tenant 
and  not  the  lessor,  has  no  claim  on  the  latter  for  commissions. 
Blake  v.  Stump,  73  Md.  60,  20  A.  788,  10  L.  R.  A.  103 ;  Winter 
V.  Gary,  127  Mo.  App.  601,  106  S.  W.  539 ;  Callaway  v.  Equit. 
Trust  Co.  67  N.  J.  L.  44,  50  A.  900 ;  Carman  v.  Beach,  63  N.  Y. 
97 ;  Haynes  v.  Fraser,  78  N.  Y.  S.  794,  76  App.  Div.  627 ;  Curry 
V.  Terry,  69  N.  Y.  S.  932,  34  Misc.  797;  Carroll  v.  O'Shea,  18 
N.  Y.  S.  146,  42  N.  Y.  St.  R.  671;  Bichtberg  v.  Carlton,  108 
N.  Y.  S.  1067,  58  Misc.  186;  Wireman's  Est.,  7  Pa.  Dist.  759, 
4  Weekly  Notes  Cas.  334.    See  also  Sec.  25. 

Sec.  209.  Broker  to  procure  a  lessee  not  entitled  to  com- 
mission for  procuring  a  mere  option. 
A  real  estate  agent  employed  to  lease  property  procured  a 
proposed  lessee  to  sign  a  paper  reciting  the  payment  of  money 
on  account  of  a  deposit  to  be  paid  on  the  signing  of  a  proposed 
lease,  but  such  writing  did  not  contain  any  promise  to  take  a 
lease,  nor  were  any  terms  specified.  Held,  that  there  was  no 
lease,  nor  an  agreement  for  a  lease,  and  therefore  the  agent 
was  not  entitled  to  commissions.  Fusco  v.  Bullowa,  40  N.  Y.  S. 
676,  17  Misc.  573,  75  N.  Y.  St.  80 ;  Benedict  v.  Pincus,  95  N.  Y. 
S.  1042,  109  App.  Div.  20;  Laiv  &  Bradford  v.  Schmidt,  80 
0.  St.  108,  88  N.  E.  319 ;  Rice  v.  Neuman,  115  N.  Y.  S.  83. 

Sec.  210.  In  action  by  a  broker  for  commissions  owner  can 
show  previous  lease  to  another. 
Where,  in  an  action  by  a  broker  for  commissions  alleged  to 
have  been  earned  in  procuring  a  tenant  for  defendant's  prop- 
erty, there  was  no  showing  as  to  the  character  or  business  of 
the  tenant  claimed  to  have  been  procured,  or  any  other  fact 
tending  to  show  that  he  was  a  satisfactory  tenant,  or  that  the 


142  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

lease  presented  to  defendant  for  signature  was  satisfactory  to 
him;  the  evidence  was  insufficient  to  show  performance  of  serv- 
ice by  plaintiff  for  which  defendant  was  liable,  or  to  show  that 
defendant  had  no  right  to  lease  the  premises  to  another  before 
the  lease  to  the  tenant  procured  by  plaintiff  was  presented  for 
signature.    Pescia  v.  Haims,  99  N.  Y.  S.  421,  50  Misc.  550. 

Sec.  211.  Broker  bound  by  first  claim  for  commissions  for 
lease  and  can  not  increase  amount. 
"Where  the  plaintiff  testified  that  he  told  defendant  what  the 
commission  would  be  for  a  lease  of  his  property,  but  was  silent 
as  to  what  the  commission  was,  and  the  defendant  said  that  the 
first  claim  plaintiff  made  was  $350,  plaintiff  can  not  recover  a 
larger  amount.  Duncan  v.  Borden,  13  Colo.  App.  481,  59  P. 
60.     See  also  Sec.  572. 

Sec.  212.  Broker  securing  lease  for  five  years,  and  sale  at 
second  year,  loses  commissions  for  three  years. 
Where  plaintiff  procured  a  tenant  for  defendant  for  a  term 
of  five  years,  the  lease  providing  that  if  the  property  was 
sold,  it  should  be  ended,  and  the  property  was  sold  at  the  end 
of  the  second  year,  plaintiff  was  not  entitled  to  commissions 
for  the  remaining  three  years  of  the  lease  as  on  an  implied 
contract,  although  the  sale  was  made  to  the  tenant's  wife,  and 
the  lease  gave  the  tenant  an  option  of  purchase.  Mears  v. 
Jones,  102  Me.  485,  67  A.  555.    See  also  Sees.  207,  456. 

Sec.  213.  Where  lease  forbade  sub-letting,  oral  assent  of  agent 
therefor  unavailing. 
Where  a  written  lease  forbids  sub-letting,  the  oral  assent  of 
the  landlord's  agent  to  such  sub-letting,  without  any  new  con- 
sideration with  the  landlord  is  unavailing.  Spota  v.  Hayes,  73 
N.  Y.  S.  959,  36  Misc.  532.    See  Sec.  409. 

Sec.  214.    Lease  by  owner  after  broker's  contract  ended  de- 
prives him  of  commissions. 
Defendant,  the  owner  of  a  building,  informed  plaintiff,  a  real 
estate  broker,  that  he  desired  a  tenant,  and  stated  that  plaintiff 
should  bring  him  an  offer,  if  plaintiff  could  get  one;  plaintiff 


LEASES.  143 

then  presented  the  question  to  a  third  person,  who  made  two 
written  offers  to  defendant,  both  of  which  were  declined,  after 
which  the  one  making  the  offer  told  plaintiff  that  the  matter 
was  ended ;  but  several  weeks  after  such  offers  had  been  declined 
the  one  who  had  made  them  entered  into  negotiations  with 
defendant,  which  resulted  in  the  making  of  a  lease.  Held,  that 
in  the  absence  of  any  evidence  of  bad  faith  to  defeat  the  rights 
of  plaintiff  to  a  commission,  the  facts  did  not  show  him  entitled 
to  the  same.  Arnold  v.  WoollacoU,  4  Cal.  App.  500,  88  P.  504. 
See  also.  Continuity  Broken,  Sec.  447. 

Sec.  215.    Broker  bringing  about  the  sale  of  a  lease  entitled 

to  commissions. 

< 

One  employed  by  the  owner  of  a  lease  to  negotiate  a  sale 
thereof,  who  begins  negotiations  which  finally  result  in  a  sale 
as  authorized,  may  recover  compensation  accordingly.  North- 
rupp  V.  Diggs,  128  Mo.  App.  217,  106  S.  W.  1123.  See  also 
See.  446. 

Sec.  216.  Broker  not  entitled  to  commissions  where  sale  of 
lease  frustrated  by  lessor's  refusal  to  assign. 
Where  plaintiffs  were  employed  to  sell  a  dairy  on  certain 
terms  and  obtained  a  purchaser  conditioned  that  the  vendor's 
lessors  would  consent  to  assign  their  lease,  and  the  landlords 
refused  so  to  do,  wherefore  the  sale  was  not  made,  they  were 
not  entitled  to  their  "commissions.  Ward  v.  Kennedy,  101  N.  Y. 
S.  524,  51  Misc.  422;  McCurry  v.  Hawkins,  103  S.  W.  600;  83 
Ark.  242.    See  also  Sec.  45. 

Sec.  216a.  Broker  held  not  entitled  to  commissions  where 
plaintiff  refused  to  make  lease. 
A  real  estate  broker  said  to  one  of  defendant's  officers  that 
lie  could  rent  defendant's  building  for  a  theater,  provided  de- 
fendant would  make  certain  changes.  Several  interviews  fol- 
lowed, and  plans  of  the  desired  changes  were  submitted  by 
architects.  The  rent  was  practically  agreed  upon,  and  defendant 
also  agreed  to  pay  as  commissions  not  more  than  $3,000,  nor 
less  than  $2,500,  "depending  upon  the  terms  and  conditions 


144  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

made  with  the  proposed  tenants."  Defendant  finally  decided 
not  to  rent,  whereupon  the  negotiations  were  terminated.  Held, 
that  defendant  was  not  liable  for  the  commissions.  Colin  v. 
James  McCreary  Realty  Cor.,  92  N.  Y.  S.  143,  102  App.  Div. 
611;  Twelfth  St.  Market  Co.  v.  Jackson,  102  Pa.  St.  269.  See 
Sec.  33. 

Sec.  217.  Where  lease  was  to  highest  bidder,  Ijroker  prevent- 
ing bidding  not  entitled  to  commissions. 
A  broker  does  not  earn  a  commission  for  obtaining  a  lease 
of  property  from  the  city,  where  he  was  not  the  procuring  cause 
thereof ;  it  was  required  to  be  let  to  the  highest  bidder,  whereas 
the  only  service  he  rendered  was  in  preventing  the  attendance 
of  other  bidders.  Myers  v.  Dean,  29  N.  Y.  S.  578,  9  Misc.  183. 
See  also  Sec.  559,  441. 

Sec.  218.  In  action  for  commissions  for  securing  a  lease, 
defendant  can  show  contract  was  merely  tentative. 
In  an  action  for  commissions  for  procuring  a  contract  for  a 
lease,  defendant  might  show  as  against  the  plaintiff  by  parol, 
that  the  contract  was  merely  provisional,  did  not  express  all 
the  terms  of  the  lease  to  be  entered  into  between  the  parties, 
as  was  also  understood  by  plaintiff,  and  that  the  lease  was  never 
consummated,  because  no  final  agreement  was  ever  made  be- 
tween defendant  and  the  lessee.  Buxton  v.  Beat,  49  Minn.  230, 
51  N.  W.  918 ;  Cromhie  v.  Waldo,  137  N.  Y.  129,  32  N.  E.  1042, 
33  N.  E.  744;  Laws  v.  Schmidt,  80  Ohio  St.  108,  88  N.  E.  319. 

Sec.  219.  Finding  for  plaintiff  as  procuring  cause  of  the  lease 
excludes  co-operation. 
A  finding  for  plaintiff,  on  the  question  whether  he  was  the 
procuring  cause  in  effecting  a  lease,  excludes  the  idea  that  any 
other  agency  co-operated  to  bring  about  that  result.  Bumfield 
v.  Pettier,  etc.,  Mfg.  Co.,  20  N.  Y.  S.  615,  1  Misc.  92. 

Sec.  220.    Broker  to  secure  lease  for  eight  years,  to  earn  com- 
missions must  secure  one  for  that  time. 
A  broker  was  employed  to  obtain  a  lease  for  at  least  eight 
years  of  premises  in  which  to  conduct  a  certain  business;  he 


LEASES.  145 

obtained  a  lease  on  premises  owned  in  part  by  infants,  the 
youngest  of  whom  would  be  of  age  in  six  years;  the  principal 
refused  to  accept  the  lease.  Held,  that  the  broker  was  not  enti- 
tled to  his  commissions,  since  the  guardian  of  the  infants  could 
make  a  lease  good  only  during  the  infants'  minority,  and 
hence  the  broker  has  not  found  a  person  ''able"  to  enter  into 
the  contract  which  he  was  authorized  to  negotiate.  Folsom  v. 
Hesse,  53  N.  Y.  S.  97,  24  Misc.  713. 

Sec.  221.    Lessor's  rights  under  a  receipt  not  affected  by  secret 
understanding  of  broker  with  tenant. 

Where  lessors  were  induced  to  execute  a  lease  to  a  tenant 
procured  by  the  lessor's  broker,  on  receiving  the  broker's  re- 
ceipt for  his  commissions  from  the  tenant,  any  agreement  be- 
tween the  broker  and  the  tenant  as  to  the  use  of  the  receipt, 
made  without  the  knowledge  or  consent  of  the  lessors,  would 
not  affect  their  rights  under  the  receipt.  Davis  v.  True,  85 
N.  Y.  S.  843,  89  App.  Div.  319. 


CHAPTER   V. 
LOANS  ON  REAL  ESTATE. 

Sec.  222.     One  employing  a  broker  to  obtain  a  loan,  without 
disclosing  the  owner  of  the  land,  liable  for  commissions. 

One  who  procures  a  real  estate  broker  to  obtain  a  loan  on 
land,  without  disclosing  the  name  of  the  owner  of  the  land  for 
whom  the  loan  is  intended,  makes  himself  liable  for  the  value 
of  the  broker's  services.  Bacoii  v.  Rupert,  39  Minn.  512,  40 
N.  W.  832.    See  also  Sec.  398. 

Sec.  223.  Broker  to  be  paid  commissions  from  proceeds,  not 
entitled  thereto  where  loan  is  refused  for  bad  title. 
Under  a  complaint  alleging  that  plaintiff  was  employed  by- 
defendant  to  procure  a  loan  on  real  estate,  for  which  defendant 
promised  to  pay  a  certain  sum  on  performance,  plaintiff  was 
not  entitled  to  recover  on  proof  that  he  obtained  a  person 
willing  to  make  the  loan,  but  refused  to  do  so,  because  of  defects 
in  the  defendant's  title  to  the  property  which  was  to  be  mort- 
gaged to  secure  the  loan.  Hess  v.  Eggers,  78  N.  Y.  S.  1119, 
38  Misc.  726;  Stone  v.  Goodstein,  97  N.  Y.  S.  1035,  49  Misc. 
482.  Contra,  Putzel  v.  Wilson,  2  N.  Y.  S.  47,  49  Hun,  220. 
See  also  Sec.  570. 

Sec.  224.     Broker  does   not  earn   commissions  where   lender 
refuses  to  consummate  loan. 
A  broker  employed  to  procure  a  loan  does  not  earn  his  com- 
mission by  merely  securing  a  lender  who  offers  to  make  the 
loan,   but  who,   after  acceptance   by   the   borrower,   refuses   to 
consummate  the  transaction.     Ashfield  v.   Case,   87  N.   Y.    S. 
649,  93  App.  Div.  452;  Hanesley  v.  Bagley,  109  Ga.  346,  34 
S.  E.  584;  Murry  v.  East  End  Imp.  Co.,  22  Ky.  L.  R.  147, 
60    S.    W.    648;    Marmaduke    v.    Martin,   90    Mo.    App.    629; 
146 


LOANS   ON    REAL   ESTATE.  147 

Crasto  V.  White,  5  N.  Y.  S.  718,  52  Hun,  473 ;  Finck  v.  Mmke, 
67  N.  Y.  S.  954,  33  Misc.  769 ;  Duckworth  v.  Rogers,  95  N.  Y. 
S.  1089,  109  App.  Div.  168.    See  Sees.  119,  193,  272,  449,  556. 

Sec.  225.     Broker  not  entitled  to  compensation  for  securing 
conditional  loan  defeated  by  defect  in  title. 

A  broker  employed  to  procure  a  loan  on  real  estate  is  not 
entitled  to  compensation  merely  because  a  lender  was  found 
who  agreed  to  make  the  loan,  "subject  to  conditions,  title, 
etc.,  being  found  ultimately  satisfactory,"  but  who  declined 
to  make  the  loan  after  an  examination  of  defendant's  title  to 
the  real  estate.  Chambers  v.  Ackley,  91  N.  Y.  S.  78;  Gatling 
V.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App.  D.  50.  See 
also  Sec.  534. 

Sec.  225a.    Procuring  agreement  to  make  loan  insufficient. 

Procuring  an  agreement  to  make  a  loan  is  not  the  same  as 
procuring  a  loan.     Rosenthal  v.  Gunn,  119  N.  Y.  S.  165. 

Sec.  226.  Broker  to  recover  compensation  for  loan  must  show 
on  same  terms  as  to  payment,  interest,  etc. 
In  an  action  to  recover  upon  an  agreement  by  defendant  to 
pay  a  specified  compensation,  when  notified  of  the  accept- 
ance of  an  application  for  a  loan  addressed  to  the  plaintiff, 
who  was  to  undertake  to  procure  the  loan,  it  was  held  that 
although  the  evidence  showed  the  acceptance  by  a  corporation 
of  an  application  made  to  it  by  the  plaintiff  for  a  loan,  it  was 
insuflficient  to  sustain  a  recovery,  because  it  did  not  show  that 
the  application  made  to  the  corporation  and  accepted  by  it 
embraced  the  same  terms,  as  to  rate  of  interest  and  time,  as 
had  been  specified  in  the  application  of  the  def^^ndant.  Peet 
V.  Sherwood,  47  Minn.  347,  50  N.  W.  929;  IlUngsworth  v. 
Slosson,  19  111.  App.  612;  Kronenherger  v.  Teshemacher,  101 
N.  Y.  S.  764,  52  Misc.  130. 

Sec.  226a.    Defendant  held  liable  to  broker  for  commissions 

for  procuring  loan. 

Defendant's  real    property    was    heavily    incumbered    with 

back   taxes.      Under   an   act   of   the   Legislature   she   could   by 

paying  them  off  by  a  given  date,  gain  a  rebate  of  interest. 


148  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

To  accomplish  this  end,  and  after  estimating  the  amount  re- 
quired, she  employed  plaintiff  to  procure  a  loan  on  bond  and 
mortgage  "for  $70,000  or  $80,000,"  his  commission  to  be  five 
per  cent.,  and  later  the  amount  was  raised  to  $85,000.  Plain- 
tiff agreed  to  procure  it  in  time  for  a  compliance  with  the 
act.  Defendant  assumed  the  expense  of  "procuring  tax  bills." 
Plaintiff  in  due  time  found  a  lender  ready,  able  and  willing 
to  furnish  $85,000.  Held,  that  the  agreement  imposed  no  ob- 
ligation upon  either  plaintiff  or  the  proposed  lender  to  obtain 
searches  and  estimates  showing  the  exact  amount  of  the  taxes, 
and  that  the  failure  to  do  so  did  not  relieve  defendant  from 
her  liability  for  plaintiff's  commissions.  Scott  v.  Woolsey,  47 
N.  Y.  S.  320,  20  App.  Div.  541. 

Sec.  227.     On  question  of  compensation  for  loan,  former  a^ee- 
ment  as  to  value  of  services  ignored. 

The  fact  that  at  one  time  there  had  been  an  agreement  be- 
tween certain  persons  as  to  the  compensation  to  be  paid  for 
services  in  procuring  a  loan  is  not,  where  the  agreement  has 
been  abandoned,  entitled  to  any  consideration  in  an  action  to 
determine  the  reasonable  value  of  such  services.  Carruthers 
v.  Towne,  86  Iowa  318,  53  N.  W.  240. 

Sec.  228.  Reasonable  value  of  broker's  services  in  procuring 
loan  may  be  shown  by  testimony  of  experts. 
Wliere  loan  brokers  are  employed  to  secure  a  loan,  and  dif- 
ferent propositions  as  to  compensation  are  made,  and  no  pro- 
posal as  to  compensation  applies  perfectly,  and  the  parties 
separate  expressing  themselves  merely  as  willing  to  do  what 
is  right  in  the  matter,  evidence  as  to  the  reasonable  value  of 
the  services  rendered  is,  in  view  of  the  uncertainty  of  any 
agreement  for  specific  compensation,  properly  admitted;  the 
reasonable  value  of  the  services  required  to  procure  a  certain 
loan  may  be  shown  by  the  testimony  of  persons  experienced 
in  making  loans.     Id. 

Sec.  229.     Broker  liable  for  loss  when  loan  made  upon  in- 
sufficient security. 

A  loan  broker  is  liable  to  the  lender  on  real  estate  for  the 
loss  of  a  loan  negotiated  by  the  broker  upon  a  mortgage  which 


LOANS   ON   REAL   ESTATE.  149 

proved  insufficient  security  in  consequence  of  prior  incum- 
brances, where  the  broker  agreed  to  loan  the  money  only  on 
first  mortgage  security  on  real  estate  worth  double  the  sum 
loaned,  notwithstanding  the  property  may  have  been,  in  fact, 
of  double  the  value  of  all  the  incumbrances  thereon.  Shipherd 
V.  Field,  70  111.  438;  Nicolai  v.  Lyon,  8  Ore.  56;  Turnhull  v. 
Gadsden,  2  Strob.  (Eq.)  (S.  C.)  14;  Rubens  v.  Herd,  121  Cal. 
17,  53  P.  432.     See  Sees.  346,  350,  403. 

Sec.  230.  A  loan  broker  is  bound  to  make  good  money  lost 
through  his  negligence. 
A  money  lender  to  whom  a  sura  of  money  is  given  to  in- 
vest is  bound  to  exercise  reasonable  skill  and  prudence;  by  his 
business  he  holds  himself  out  as  possessing  competent  skill  to 
determine  what  reasonable  care  and  prudence  requires ;  if  he 
fails  to  exercise  these,  and  through  his  negligence  loss  occurs, 
he  is  liable  to  make  it  good.  McFarland  v.  McClure  (Pa.  Sup. 
Ct.  1886),  5  A.  50.    See  also  Sees.  350,  403. 

Sec.  231.     Bill   for   extra    compensation    for   procuring   loan 
should  be  separated  to  see  whether  it  is  reasonable. 

While  it  may  be  allowable  to  pay  a  broker  for  extra  ser- 
vices, not  usually  necessary  in  procuring  loans,  in  addition  to 
the  prescribed  brokerage,  the  items  composing  his  bill  should 
be  separated  so  that  it  may  be  seen  whether  the  compensation 
is  reasonable,  or  only  a  cover  for  demanding  a  larger  commis- 
sion.    Cook  V.  Phillips,  56  N.  Y.  310.     See  also  Sec.  241. 

Sec.  232.  Broker  for  seller  obtaining  loan  for  buyer  from 
seller  can  not  recover  commissions  therefor  from  buyer. 
A  broker  employed  by  the  owner  of  lands  to  procure  a  sale 
thereof  to  one  who  shall  agree  to  take  from  the  owner  a  loan 
and  improve  the  property  can  not,  after  recovering  compen- 
sation from  the  owner  of  the  property  for  effecting  the  sale, 
recover  compensation  from  the  purchaser  for  procuring  the 
loan  to  him.  Vanderpool  v.  Kcarne,  2  E.  D.  Smith  (N.  Y.), 
170.     See  Sec.  25.     Compare  Sec.  254. 


150  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Sec.  233.  Broker  procuring  loan  for  less  than  asked,  which  is 
accepted,  earns  commissions. 
In  an  action  upon  an  agreement  to  pay  a  broker  a  commis- 
sion for  obtaining  a  loan,  it  appeared  that  a  loan  for  a  less 
amount  was  obtained,  and  at  first  accepted,  but  subsequently 
declined  by  the  principal  as  being  insufficient  for  his  purposes. 
Held,  that  the  services  had  been  rendered  and  the  commission 
was  due,  in  the  absence  of  any  usage  among  New  York  brokers 
to  receive  no  compensation  unless  the  matter  was  consum- 
mated.    Van  Lieu  v.  Byrnes,  1  Hilton   (N.  Y.),  133. 

Sec.  234.     Broker  entitled  to  commissions  on  finding  lender 
unless  rights  varied  by  special  contract. 

A  broker  employed  to  effect"  a  loan  is  entitled  to  his  com- 
missions, when  he  has  found  a  lender  who  has  the  money  and 
who  approves  of  the  security,  unless  his  rights  are  varied  by 
special  contract;  there  is  always  an  implied  condition  that  the 
borrower  will  show  a  good  title.  Budd  v.  Z oiler,  52  Mo.  238; 
Bundle  v.  Staats,  19  Colo.  App.  164,  73  P.  1091;  Silherberg 
V.  Chipman,  42  Colo.  20,  93  P.  1130;  Brillow  v.  Ozienkowski, 
112  111.  App.  165;  Phister  v.  Gove,  48  Mo.  App.  455;  Demarest 
V.  Spiral  Biv.  Tube  Co.,  71  N.  J.  L.  14,  58  A.  161;  BocJcwell 
V.  Hurst,  13  N.  Y.  S.  290;  Van  Orden  v.  3Iorris,  42  N.  Y.  S. 
473,  18  Misc.  579,  43  S.  1108,  19  M.  497;  Chambers  v.  Peters, 
63  N.  Y.  S.  151,  30  Misc.  756;  Finck  v.  Schmidt,  96  N.  Y.  S. 
197,  48  Misc.  503;  Nefletberger  v.  Garner,  109  N.  Y.  S.  747, 
125  App.  Div.  420;  Steinmetz  v.  Pancoast,  17  Phila.  (Pa.) 
185 ;  Dorian  v.  Forrest,  91  N.  Y.  S.  431,  101  App.  Div.  32. 

Sec.  235.  Broker  not  reporting  loan  barred  commissions  on 
applicant  himself  procuring. 
Where  an  application  for  a  loan  is  made  to  a  broker,  who 
secures  a  party  willing  to  make  the  loan,  but  does  not  so 
notify  the  applicant,  and  after  the  time  within  which  the 
broker  was  to  place  the  loan  has  expired,  the  applicant,  with- 
out knowledge  of  the  steps  taken  by  the  broker,  secures  a  loan 
from  the  same  person  with  whom  the  broker  had  arranged  to 
place  it,  he  is  not  entitled  to  a  commission.  Biddison  v.  John' 
son,  50  111.  App.  173.     See  also  Sees.  431,  471. 


LOANS   ON   REAL   ESTATE.  151 

Sec.  236.    In  action  by  broker  for  commissions  for  procuring 
loan,  not  necessary  to  prove  tender. 

In  an  action  by  brokers  to  recover  commissions  for  negotiat- 
ing a  loan,  which  the  proposed  borrower  failed  to  accept  and 
give  security  for  as  agreed,  they  need  not  prove  a  tender  of 
the  money,  as  it  is  the  client's  duty  on  notice  of  the  money 
being  procured  to  give  the  proposed  security  and  take  the 
money.     Telford  v.  Briiikerhoff,  45  111.  App.  586. 

Sec.  237.     Admissibility  of  correspondence  to  establish  broker 's 
agency  in  making  loan. 

On  an  issue  as  to  whether  a  loan  broker  was  the  agent  of 
defendant  in  negotiating  a  loan  for  him,  or  the  agent  of  plain- 
tiff company  which  made  the  loan,  correspondence  between  the 
broker  and  the  plaintiff's  manager  relative  to  defendant's  loan 
and  a  requested  extension  thereof,  and  concerning  other  loans 
made  by  plaintiff  through  the  broker,  is  admissible  in  evidence, 
and  the  question  is  one  for  the  jury.  Jesson  v.  Texas  Land  & 
Loan  Co.,  3  Tex.  Civ.  App.  25,  21  S.  W.  624. 

Sec.  238.     Improper  to  submit  to  jury  whether  loan  broker  im- 
properly entered  release  of  judgment. 

A  loan  broker  was  the  agent  for  both  parties  in  the  negotia- 
tion of  a  loan,  which  was  to  be  secured  by  a  trust  deed  of 
land  incumbered  by  a  judgment;  the  amount  of  the  loan  was 
sent  to  him  by  the  lender,  with  instructions  to  see  that  the 
amount  required  by  the  terms  of  the  deed  be  applied  to  se- 
cure a  release  of  this  judgment  by  the  original  judgment  cred- 
itor, or  a  transfer  of  it  to  him  by  the  present  holder  was  so 
applied;  the  agent,  at  first  being  unable  to  obtain  a  release, 
took  a  transfer  of  the  judgment,  and  afterwards  obtained  a 
release,  which  he  forwarded  to  the  lender;  the  transaction  was 
completed,  and  subsequently,  at  the  request  of  the  borrower, 
and  without  any  further  instructions  from  the  lender,  the 
agent  entered  on  the  margin  of  the  judgment  record  a  receipt 
in  full  of  the  judgment.  Held,  that  an  instruction,  in  an 
action  to  obtain  execution  under  the  judgment,  submitting  the 
question  whether  the  agent  was  authorized  to  execute  a  sat- 


152  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

isfaetion  of  the  judgment,  was  improper.     Brown  v.  Dennis 
(Tex.  Civ.  App.   '95),  30  S.  W.  272. 

Sec.  239.  Authority  to  broker  to  provide  mortgage  for  loan 
confined  to  land  designated. 
A  written  contract  by  which  defendant  agrees  to  pay  plain- 
tiff for  securing  a  loan  for  him,  to  mortgage  certain  property 
therefor,  and  to  "authorize,  ratify  and  confirm  every  act  and 
thing  the  said  M.  may  do  in  negotiating  said  loan,"  covers  only 
every  act  and  thing  touching  the  land  to  be  mortgaged,  and 
does  not  bind  defendant  to  sign  a  mortgage  containing  a  cove- 
nant waiving  the  benefit  of  homestead  and  exemption  laws  as 
to  all  his  property.    Roberts  v.  Matthews,  77  Ga.  458. 

Sec.  240.    Where  principal  six  months  after  cured  defect  in 
title,  lender  then  refusing  to  loan,  broker  earned  com- 
missions. 
The   fact  that  the   principal   cures   the   defect  in  his   title, 
does  not  deprive  the  broker  of  his  right  to  commissions,  where 
the  principal  gave  no  notice  that  the  defect  was  cured  until 
six  months  after  the  customer  was   procured,   at  which  time 
the   customer   refused   to  make   the   loan   because   of  changed 
financial  conditions.     Clark  v.  Henry  G.  Thompson,  etc.,  Co., 
75  Conn.  161,  52  A.  720. 

Sec.  240a.    When  loan  not  made  broker,  must  prove  title  not 
good. 

If  the  title  to  property  on  which  a  loan  was  to  be  made  was 
not  good,  it  should  be  proved  in  a  suit  for  procuring  a  loan 
thereon  which  was  not  made.  Rosenthal  v.  Gunn,  119  N.  Y. 
S.  165. 

Sec.  241.     Broker  charging  more,  nevertheless  entitled  to  stat- 
utory commissions  for  procuring  loan. 

Where  a  broker  charges  greater  commissions  for  his  services 
than  the  statute  allows,  in  the  absence  of  an  agreement,  this 
does  not  deprive  him  of  the  legal  compensation.  Vanderpool 
V.  Kearns,  2  E.  D.  Smith  (N.  Y.),  170;  Buchanan  v.  Tilden, 
45  N.  Y.  S.  417,  18  App.  Div.  123. 


LOANS   ON   REAL   ESTATE.  153 

Sec.  242.  Broker  entitled  to  commissions  for  procuring  loan 
though  principal  refuses  to  take. 
A  broker  is  entitled  to  a  commission  for  procuring  a  loan 
at  the  request  of  his  principal,  though  the  latter  refuses  to 
take  it  when  procured.  Squires  v.  Kmg,  15  Colo.  416,  417; 
Collier  v.  Way  man,  114  Ga.  944,  41  S.  E.  50 ;  Vinton  v.  Bald- 
win, 88  Ind.  104;  Hackman  v.  Gutweiler,  66  Mo.  App.  244; 
Lord  V.  Moran,  64  N.  Y.  S.  37,  31  Misc.  750;  Perrij  v.  Bates, 
100  N.  Y.  S.  881,  115  App.  Div.  337.     Compare  Sec.  242a. 

Sec.  242a.  Broker  to  procure  loan  not  entitled  to  commissions 
unless  loan  made. 

As  a  general  rule,  brokers  employed  to  procure  a  loan  are 
not  entitled  to  the  commission  therefor  until  the  loan  is  made. 
Holliday  v.  Roxbury  Distilling  Co.,  115  N.  Y.  S.  383. 

Where  one  employing  a  broker  to  procure  a  loan  on  certain 
securities  may  be  liable  for  breach  of  the  contract,  if  the  se- 
curities are  not  as  valuable  as  he  supposed  and  represented, 
so  as  to  prevent  him  from  obtaining  the  loan,  the  broker  would 
not  be  entitled  to  recover  commissions  as  for  the  full  perform- 
ance of  the  contract.  Holliday  v.  Roxhury  Distilling  Co.,  115 
N.  Y.  S.  383.     Compare  Sec.  242. 

Sec.  243.  Loan  broker  to  whom  borrower  paid  commissions 
his  agent,  though  lender  took  payments  from  him. 
Complainant  requested  a  broker  to  find  some  one  to  whom 
complainant  could  loan  a  sum  of  money;  the  broker  made  a 
loan  of  such  an  amount  to  defendant,  advancing  his  own  money 
and  taking  a  note  and  mortgage,  which  he  turned  over  to 
complainant;  complainant  paid  over  the  amount  to  the  broker; 
defendant  paid  the  broker  for  obtaining  the  loan;  subsequently 
defendant  made  payments  of  interest  to  the  broker,  who  re- 
mitted to  the  complainant;  on  such  occasions  complainant  re- 
quested the  broker  to  notify  defendant  when  the  interest  was 
due.  Held,  that  the  evidence  did  not  show  that  the  broker 
was  the  agent  of  the  complainant  in  receiving  the  payments. 
Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E.  665;  Ward  v.  Trus- 
tees,  27  R.  I.  262  61  A.  651.    See  also  Sec.  254. 


154  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  244.    Money  put  in  bank,  subject  to  check  of  broker  for 
loans,  did  not  make  him  agent  of  lender. 

The  mere  fact  that  the  lender  of  money  deposited  in  bank 
a  fund  which  should  be  subject  to  the  check  of  the  loan  broker 
for  the  amount  of  the  loan,  if  the  lender,  after  an  examina- 
tion by  himself  of  the  application  of  the  prospective  bor- 
rower, should  approve  the  same,  did  not  constitute  the  broker 
the  agent  of  the  lender  for  the  purpose  of  making  loans.  Barks- 
dale  V.  Security  Inv.  Co.,  120  Ga.  388,  47  S.  E.  943. 

Sec.  245.     Owner  reserving  right  and  himself  securing  loan, 
not  liable  to  broker  for  commissions. 

Where  a  broker  is,  authorized -to  secure  a  loan  for  the  owner 
of  real  estate,  as  exclusive  agent,  for  the  purpose  of  taking  up 
a  mortgage,  the  owner  impliedly  reserves  the  right  to  obtain 
the  loan  himself,  and  if  he  closes  his  arrangements  before  a 
person  ready,  willing  and  able  to  take  the  loan  is  furnished, 
the  broker  is  not  entitled  to  commissions;  whether  the  loan  is 
secured  by  the  owner  from  a  third  party  or  by  a  renewal 
through  agreement  with  the  person  holding  the  note  and  mort- 
gage is  immaterial,  so  far  as  concerns  the  broker's  right  to  com- 
missions under  the  implied  obligations  of  the  latter 's  agency. 
Mott  V.  Ferguson,  92  Minn.  201,  99  N.  W.  804;  Davison  v. 
Herndin,  125  Ga.  385,  54  S.  E.  92;  Kimball  v.  Hayes,  199 
Mass.  516,  85  N.  E.  875.     See  also  Sec.  247. 

Sec.  246.     Owner  refusing  loan  on  one  ground  subsequently 
estopped  to  set  up  another. 

"Where  defendant  refused  to  accept  a  loan  negotiated  by  a 
broker,  on  the  ground  that  the  broker's  charge  for  his  services 
was  excessive,  defendant  could  not  resist  payment  for  such 
services  on  the  ground  that  the  lender  incorporated  a  new 
condition  in  the  application  requiring  defendant  to  comply 
with  its  rules  and  accept  the  loan  within  ten  days.  Hotchkiss 
V.  Kuehler,  83  N.  Y.  S.  710,  86  App.  Div.  265.  Contra,  The 
List  &  Son  Co.  v.  Chase,  80  0.  St.  42.    See  also  Sec.  840. 


LOANS   ON   REAL   ESTATE.  155 

Sec.  247.     Broker  failing  to  secure  loan,  principal  gsecuring 
from  same  party,  bars  commissions. 

Where  an  agent  was  negotiating  to  procure  a  loan  of  not 
less  than  $220,000;  but  failed  to  secure  anything  better  than  an 
offer  of  $210,000 ;  this  not  being  accepted  he  abandoned  the 
matter;  he  was  not  entitled  to  commissions  when  his  princi- 
pal subsequently  took  a  loan  of  $220,000  from  the  same  party. 
Stone  V.  Plant,  96  N.  Y.  S.  1030.    See  also  See.  245. 

Sec.  248.  Broker  to  examine  title  and  secure  loan,  barred  com- 
missions on  failure  by  defect  in  title. 
A  person  wishing  to  borrow  money  on  property  applied  to 
another  who  agreed  to  find  a  lender  and  to  have  the  title  ex- 
amined, and  to  charge  a  certain  sum,  which  would  include  the 
expense  of  examining  the  title  and  his  commission,  such  per- 
son to  give  the  agent  his  title  deeds  at  the  time;  a  defect  be- 
ing found  in  the  title  the  lender  refused  to  loan  the  money, 
and  the  agent  sued  for  the  amount  of  the  stipulated  compen- 
sation. Held,  that  such  agent  should  have  first  examined  the 
title  before  applying  for  a  loan ;  he  was  the  agent  for  that  pur- 
pose as  well  as  for  procuring  a  loan,  and  was  not  entitled  to 
commissions.     Bndd  v.  Zoller,  52  Mo.  238. 

Sec.  249.     Loan  defeated  through  wrong  dimensions  known  to 
broker  bars  commissions. 

In  an  action  by  a  broker  to  recover  a  commission  for  pro- 
curing a  loan,  it  appeared  that  the  written  portion  of  the  ap- 
plication for  the  loan  was  filled  in  by  the  broker,  and  he  was 
aware  when  defendant  signed  the  application  that  defendant 
was  uncertain  as  to  the  exact  dimensions  of  the  lot  on  which 
security  was  to  be  given,  though  the  dimensions  were  stated 
in  the  application,  and  the  loan  was  rejected  because  the  di- 
mensions were  not  correctly  given.  Held,  that,  inasmuch  as 
the  broker  was  equally  responsible  with  the  defendant  for  not 
disclosing  the  siituation  to  the  lenders,  and  for  their  refusal  to 
make  the  loan,  he  could  not  recover.  Shropshire  v.  FranJcel, 
91  N.  Y.  S.  79,  45  Misc.  616.    See  also  Sec.  435. 


156  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  250.    Where  loan  prevented  by  defective  title,  error  to 
grant  broker  judgment  for  full  compensation. 

"Where  an  agreement  was  made  to  pay  plaintiff  $800,  if  he 
secured  a  certain  loan  for  defendant  on  its  property,  which 
sum  was  to  cover  all  fees,  lawyers'  charges,  disbursements,  etc., 
it  was  error  to  grant  a  judgment  for  the  full  amount,  where 
performance  was  prevented  by  reason  of  defendant's  defective 
title.  Gatling  v.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App. 
D.  50 ;  Finck  v.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554.  See  also 
Sec.  572. 

Sec.  251.    Attorney  given  interest  in  land,  instead  of  cash,  as 
fee  for  procuring  loan. 

The  client  having  conveyed  to  the  attorney  an  interest  in 
the  estate  as  compensation  for  his  services,  instead  of  a  cash 
fee,  he  acquired  an  equitable  lien  thereon  for  his  compensa- 
tion in  procuring  the  loan.  Goad  v.  Hart,  128  Cal.  197,  60  P. 
761,  964. 

Sec.  252.    Verdict  for  broker  for  procuring  loan  set  aside  as 
against  the  weight  of  the  evidence. 

A  verdict  for  plaintiff  will  be  set  aside  as  against  the  weight 
of  the  evidence,  where,  on  the  issue,  whether  defendant  agreed 
to  pay  six  per  cent,  interest  for  the  loan,  so  as  to  render  him 
liable  to  plaintiff  for  procuring  a  person  ready  to  make  a  loan 
at  that  rate,  defendant  testified  that  he  did  not  agree  to  pay 
six  per  cent.,  and  his  testimony  was  contradicted  only  by  the 
agent  through  whom  the  loan  Avas  to  be  made,  who  testified 
to  a  conversation  with  defendant  about  the  loan,  and  stated 
that  the  rate  of  interest  was  to  be  six  per  cent.,  but  stated  no 
conversation  to  that  effect,  and  testified  that  he  wrote  defend- 
ant the  next  day  that  he  would  make  the  loan  at  six  per  cent. ; 
that  defendant  at  once  refused,  because  the  interest  was  too 
high,  and  that  he  told  plaintiff  so  when  the  question  of  inter- 
est was  broached;  since  it  is  apparent  that  the  statement  that 
six  per  cent,  was  to  be  paid  was  merely  an  inference  by  the 
plaintiff.  Crandall  v.  Phillips,  43  N.  Y.  S.  299,  13  App.  Div. 
118. 


LOANS   ON   REAL   ESTATE.  157 

Sec.  253.    Agreement  as  to  commissions  to  broker  for  procuring 
loan  a  question  for  the  jury. 

In  an  action  for  commissions  for  securing  a  loan,  where  the 
evidence  for  plaintiff,  though  contradicted  by  defendant,  tends 
to  show  an  agreement  to  pay  one  per  cent,  on  the  amount 
loaned  by  parties  secured  by  plaintiff,  the  question  as  to  such 
agreement  is  for  the  jury.  Cartel'  v.  3Ioss,  210  Pa.  St.  612,  60 
A.  310. 

Sec.  254.    Loan  to  purchaser  on  other  property,  procured  by 
seller's  broker,  makes  him  agent  of  purchaser  therefor. 

A  corporation  appointed  a  real  estate  broker  as  its  agent 
to  secure  a  purchaser  for  land  which  the  company  owned  in 
a  city  other  than  that  in  which  it  had  its  principal  office;  the 
person  thus  employed  put  up  a  "for  sale"  sign  with  his  name 
on  it  as  agent,  but  this  was  not  known  to  the  corporation;  a 
purchaser  was  procured  by  the  agent  and  offered  a  certain 
sum  for  the  property;  the  secretary  of  the  corporation  waited 
upon  the  purchaser  and  endeavored  to  secure  a  better  offer; 
not  succeeding  in  this,  he  said  that  the  purchaser  might  further 
"arrange  with"  the  agent,  naming  him,  or  "finish  it  out  with" 
the  agent;  the  corporation  subsequently  accepted  the  offer  of 
the  purchaser;  the  latter  then  employed  the  agent  to  raise 
money  on  a  morgage  on  other  real  estate  owned  by  hirn,  and 
such  a  mortgage  was  arranged  with  a  trust  company;  the 
money  was  paid  to  the  agent  who,  in  his  books,  credited  it 
to  the  account  of  the  purchaser,  and  made  certain  payments 
out  of  it  at  the  request  of  the  purchaser;  and  added  certain 
payments  to  it  received  from  the  purchaser,  so  that  the  amount 
of  the  loan,  which  was  the  amount  of  the  purchase  money, 
was  kept  about  the  same ;  delay  ocurred  in  delivering  the 
deed,  and  meantime  the  agent  died,  and  his  estate  was  found 
insolvent.  Held,  that  the  agent  had  no  authority  to  receive 
the  money  on  behalf  of  the  corporation,  and  that  in  placing 
the  loan  and  receiving  the  proceeds  thereof  he  acted  as  the 
agent  of  the  purchaser.  Louis  Bergdott  Brewing  Co.  v.  Bobe, 
33  Pa.  Super.  Ct.  490.    See  also  Sec.  243.     Compare  Sec.  232. 


158  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  255.  Broker  to  procure  loan,  not  thereby  authorized  to 
collect  principal  or  interest. 
The  fact  that  a  loan  broker  negotiates  a  loan  does  not  au- 
thorize him  to  collect  either  principal  or  interest,  though  the 
security  be  payable  at  his  ofifice ;  nor  does  the  fact  that  he  has 
authority  to  collect  interest  authorize  him  to  collect  the  prin- 
cipal. Hefferman  v.  Botteler,  87  Mo.  App.  316 ;  Ortmeier  v. 
Ivory,  208  111.  577,  70  N.  E.  665.  See  also  Sees.  257,  352,  356, 
566. 

Sec.  256.  Circumstances  held  to  show  broker  the  agent  of 
lender,  and  not  of  borrower. 
"Where  a  principal  loans  money  to  a  large  number  of  bor- 
rowers, through  an  agent,  and  the  latter  by  agreement  takes 
all  loans  payable  to  himself  and  indorses  the  notes  to  the 
lender,  and  draws  sight  drafts  for  the  amounts  needed,  and 
is  intrusted  with  the  care,  renewal  and  collection  of  such  loans, 
the  lender  is  not  a  bona  fide  holder  of  negotiable  paper,  and 
payment  to  the  agent  is  payment  to  the  principal.  Cheshire 
Prov.  Inst.  V.  Fuesner,  63  Neb.  682,  88  N.  W.  849;  Harrison 
Nat.  Bk.  V.  Austin,  65  Neb.  632,  89  N.  W.  245 ;  Holt  v.  Schnei- 
der, 57  Neb.  523,  77  N.  W.  1086. 

Sec.  257.  Seciurities  made  payable  at  office  of  loan  company 
do  not  make  it  agent  to  collect. 
That  a  purchaser  of  negotiable  mortgage  securities,  which 
are  made  payable  at  the  office  of  the  loan  company  negotiat- 
ing them,  knows  that  the  loan  company  solicits  payment  of 
them  regularly  as  they  fall  due,  and  that  it  interests  itself  in 
the  payment  of  taxes  and  insurance  to  protect  the  security, 
does  not  make  such  loan  company  his  agent  to  collect,  nor 
charge  him  with  the  moneys  so  obtained,  where  he  has  no 
knowledge  of  any  claim  of  authority  from  him  or  of  owner- 
ship of  the  securities,  and  he  retains  possession  of  them,  and 
places  them  in  the  hands  of  another  agent  with  instructions 
to  formally  demand  payment.  Bradbury  v.  Kinney,  63  Neb. 
754,  89  N.  W.  257.     See  also  Sees.  255,  352,  356,  566. 


CHAPTER  VI. 

SECTION.  SECTION. 

258-275.     Mortgages.  282.  Building  materials,  build- 

276-281.     Bonds.  ing    contract — Builder's 

loan. 
283-289a.  Liens. 

Sec.  258.  Purchaser  bound  by  agent's  knowledge  and  can  not 
dispute  mortgagee's  right  to  reform  mortgage. 
A  broker  who  is  employed  by  an  owner  of  land  to  find  a 
purchaser  therefor  and  is  paid  a  commission  for  his  services 
may,  after  the  conclusion  of  the  contract  of  sale,  lawfully  be- 
come the  agent  of  the  purchaser,  to  pass  on  the  title,  pay  the 
price,  and  receive  the  deed  for  the  purchaser,  if  the  purchaser 
has  knowledge  of  his  former  relations  to  the  vendor;  hence, 
knowledge  acquired  by  the  broker  before  the  contract  of  sale 
was  closed  that  an  outstanding  mortgage  executed  by  the  ven- 
dor was  intended  by  the  parties  thereto  to  cover  the  land  em- 
braced in  the  contract  of  sale,  but  through  a  mistake  of  the 
scrivener  a  different  tract  was  described  therein,  was  charge- 
able to  the  purchaser,  and  estopped  him  from  disputing  the 
mortgagee's  right  to  have  the  mortgage  reformed,  and  enforced 
against  the  land  intended  to  be  covered  by  it.  Vercruyse  v. 
Williams,  112  Fed.  206,  50  C.  C.  A.  486 ;  Dormitzer  v.  German 
Sav.  &  Loan  Soc,  23  Wash.  132,  62  P.  862.     See  also  Sec.  844. 

Sec.  259.  Broker  selling  under  power  in  a  mortgage  commits 
no  breach  in  not  notifying  mortgagor  of  proposed  sale. 
A  mortgage  note  was  given  by  the  mortgagee  to  a  real  es- 
tate broker  for  collection,  and  the  mortgagor  also  placed  the 
land  in  his  hands  for  private  sale ;  a  private  sale  which  the 
broker  attempted  to  make  having  failed,  on  acount  of  a  defect 
in  the  title,  and  the  mortgagor  having  ceased  to  trust  or  rely 
on  the  broker,  the  latter  had  the  property  sold  under  a  power 
in  the  mortgage,  without  notifying  the  mortgagor,  and  it  was 

159 


160  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

bought  by  a  third  person  who  had  no  privity  with  the  broker. 
Held,  that  the  broker  was  not  guilty  of  a  breach  of  trust. 
Ritchie  v.  Judd,  137  111.  453,  27  N.  E.  682. 

Sec.  260.  Broker  liable  for  loss  through  failing  to  record 
mortgage. 

To  an  action  against  a  broker  employed  to  sell  a  dairy  for 
damages  sustained  by  the  plaintiff  through  the  broker's  fail- 
ure to  record,  in  accordance  with  his  undertaking,  a  mortgage 
taken  by  him  from  a  purchaser  of  the  dairy  securing  the  lat- 
ter's  notes,  which  were  assumed  by  a  subsequent  purchaser 
of  the  dairy  from  him,  who  afterwards  conveyed  it,  and  who, 
as  well  as  the  first  purchaser,  is  insolvent,  it  is  no  defense  that 
the  dairy,  when  sold  by  the  first  to  the  second  purchaser,  was 
still  unincumbered,  and  that  plaintiff  rejected  an  offer  by 
the  first  purchaser  to  transfer  the  dairy  to  him  in  satisfac- 
tion of  the  amount  due  him.  Stewart  v.  Muse,  62  Ind.  385. 
See  also  Sec.  349. 

Sec.  261.  Broker  liable  for  loss  from  unpaid  mortgage,  where 
he  undertook  to  examine  the  title. 

In  an  action  against  a  real  estate  agent  for  failure  to  ex- 
amine the  title  of  land  purchased  by  him  for  plaintiff,  a  com- 
plaint alleging  that  the  grantor  had  mortgaged  the  land  con- 
veyed and  other  land,  and  that  the  mortgages  had  been  fore- 
closed and  the  land  in  question  sold,  without  showing  whether 
the  grantor  was  not  still  the  owner  of  the  other  land  mortgaged 
and  that  it  was  not  worth  more  than  the  mortgage  debt,  or 
that  plaintiff  applied  for  an  order,  in  the  decree  for  fore- 
closure, that  such  land  be  first  sold,  is  demurrable.  Sears  v. 
Forbes,  122  Ind.  358,  23  N.  E.  773. 

An  agent  who  had  no  knowledge  of  the  mortgage,  and  had 
not  agreed  to  examine  the  title  is  not  liable  to  the  purchaser 
for  loss  occasioned  by  the  existence  of  the  mortgage.  Id.  See 
also  Sec.  349. 

Sec.  262.  Broker  not  entitled  to  charge  expenses  of  foreclosing 
mortgage  to  principal. 

A  real  estate  broker  made  loans  in  his  principal's  name,  and 
to  secure  his  commissions  took  second  mortgages  in  his  own 


MORTGAGES,    BONDS,    LIENS.  161 

name,  and  at  sales  thereunder  bid  in  the  property,  and  there- 
after, without  the  knowledge  of  his  principal,  quit-claimed  to 
her  the  lands  so  acquired,  the  deeds  being  placed  among  her 
papers  in  his  possession.  Held,  that,  in  the  absence  of  ratifi- 
cation and  acceptance  of  the  deeds,  the  broker  was  not  en- 
titled to  credit  for  his  expenses  of  foreclosures  under  the  sec- 
ond mortgages  and  for  taxes  paid  without  the  principal's 
knowledge,  on  the  theory  that  such  expenditures  inured  to  her 
benefit.  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W.  1027, 
66  N.  W.  692. 

Sec.  263.    Power  to  sell  does  not  include  power  to  mortguge. 

A  power  to  sell  land  does  not.  include  power  to  mortgage. 
Stronghill  v.  Anstey,  1  De  Gex,  M.  &  G.  ( Eng. )  635 ;  Payn  v. 
Cooper,  16  Beavan  (Eng.),  396;  Halderby  v.  Spofford,  1  Beavan 
(Eng.),  390;  Jeffray  v.  Hurst,  49  Mich.  31;  Contant  v.  8er- 
voss,  3  Barb.  (N.  Y.)  128;  Russell  v.  Russell,  36  N.  Y.  581; 
Bloomer  v.  Waldron,  3  Hill  (N.  Y.),  361;  Taylor  v.  Galloway, 
1  Ohio,  232. 

A  power  to  sell  and  convey  does  not,  as  a  general  rule,  con- 
fer a  power  to  mortgage,  and  a  mortgage  executed  under  a 
power  of  attorney  authorizing  the  attorney  to  sell  and  convey 
is  void.     Morris  v.   Watson,  15  Minn.  212. 

Sec.  264.  Agent  to  invest  money  confined  to  first  mortgages. 
An  agent  employed  to  invest  money  on  mortgage  security, 
can  not  invest  in  a  second  mortgage,  without  the  express  con- 
sent of  his  principal,  and  if  he  does  will  be  liable  for  negli- 
gence.     Whitney   v.   Martine,   6   Abb.    (N.   Y.)    N.   Cases,   72. 

Sec.  265.  Broker  making  loan,  knowing  of  prior  mortgage, 
principal's  subordinated  thereto. 
"Where  an  agent  makes  a  loan  on  mortgage,  with  knowledge 
of  the  fact  that  a  prior  unrecorded  mortgage  on  the  same  prop- 
erty exists,  taken  by  him  as  agent  for  another  person,  his  prin- 
cipal in  the  second  transaction  takes  charged  with  the  knowl- 
edge of  the  agent,  and  can  not  enforce  such  second  mortgage 
as  against  the  prior  unrecorded  mortgage.  Constant  v.  Roches- 
ter Univ.,  1"  N.  Y.  S.  363.     (In  the  States  of  Arkansas,  North 


162  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Carolina  and  Ohio  mortgages  take  precedence  solely  by  prior- 
ity of  record,  or  notice  in  previous  recorded  conveyance  of 
an  unrecorded  trust  deed.)      Jones  on  jMortgages  Sec.  539. 

Sec.  266.  Power  to  purchase  gives  none  to  secure  purchase 
money  by  mortgage. 
An  agent  employed  to  purchase  property  with  particular 
funds  has  no  authority  to  mortgage  the  property  to  secure 
the  purchase  money,  and  such  mortgage  will  not  bind  the  prop- 
erty.    Fraser  v.  McPherson,  3  Desau.   (S.  C.)    393. 

Sec.  267.    Whether  agent  taking  mortgage  with  wrong  de- 
scription was  guilty  of  negligence,  a  question  for  the  jury. 

In  an  action  by  a  principal  -against  an  agent  for  negligence 
in  procuring  a  mortgage  to  be  executed  in  her  favor,  in  which 
the  land  was  wrongly  described.  Held,  that  it  should  be  left 
to  the  jury  to  say  whether  the  plaintiff  was  guilty  of  con- 
tributory negligence  is  not  discovering  the  mistake,  which  was 
patent  upon  the  face  of  the  mortgage.  Munford  v.  Miller,  7 
111.  App.  62. 

Sec.  268.  Mortgage  taken  by  lender,  bound  by  fraud  of  agent, 
and  instrument  set  aside. 
A  guardian,  by  fraudulent  proceedings  in  court,  obtained 
an  order  and  sold  property  inherited  by  his  ward,  and  his 
vendee,  who  participated  in  the  fraud,  afterwards  mortgaged 
the  property  to  secure  a  large  loan;  the  mortgage  was  made 
through  a  broker,  and  the  mortgagee  testified  that  the  broker 
was  defendant's  agent  for  the  service  of  process  and  for  no 
other  purpose,  and  that  defendant  dealt  with  him  as  with  other 
brokers ;  the  broker  passed  on  the  value  of  the  securities,  fixed 
the  terms  of  the  loans,  subject  to  the  mortgagee's  approval, 
looked  after  the  titles,  employed  attorneys  to  examine  the  same, 
received  the  money  and  paid  it  to  the  mortgagors,  and  in  let- 
ters to  the  mortgagee  spoke  of  the  loans  as  made  "by  us;" 
in  negotiating  the  loan  in  question  he  was  associated  with  a 
third  person,  and  attorneys  were  employed  bv  them  who  knew  of 
such  fraudulent  probate  proceedings,  and  that  the  proceedings 
were  made  for  the  purpose  of  shewing  a  clear  title  to  the  mort- 


MORTGAGES,    BONDS,   LIENS.  163 

gaged  property.  Held,  sufficient  to  show  that  the  broker  was 
the  agent  of  the  mortgagee  so  as  to  make  notice  of  the  fraud  to 
him  sufficient  notice  to  the  mortgagee  to  prevent  the  defense 
of  good  faith  by  it  to  an  action  by  the  ward  to  set  aside  such 
sale  and  mortgage  as  fraudulent.  Dormitzer  v.  German  Sav. 
&  Loan  Soc,  23  Wash.  132,  62  P.  862;  Vercruyse  v.  Williams, 
112  Fed.  206,  50  C.  C.  A.  486. 

Sec.  269.    Payment  on  mortgage  by  purchaser  to  seller's  agent, 
did  not  bind  mortgagee. 

Complainant  purchased  through  a  real  estate  agent  prop- 
erty subject  to  a  mortgage;  subsequently  respondent  took  ah 
assignment  of  the  mortgage  which  he  failed  to  record;  there- 
after complainant  made  payments  on  the  mortgage  to  the 
agent,  without  asking  to  see  the  mortgage  or  mortgage  note, 
he  assuming  that  the  agent  was  the  agent  of  the  holder  of 
the  mortgage;  the  agent  was  not,  in  fact,  employed  by  re- 
spondent, and  did  not  account  to  him  for  the  payments  made 
by  complainant  on  the  mortgage,  except  by  paying  interest, 
in  doing  which  he  represented  that  he  was  acting  for  com- 
plainant. Held,  that  there  was  no  evidence  of  the  real  estate 
agent's  capacity  as  agent  for  respondent,  so  as  to  charge  re- 
spondent with  the  receipt  of  the  unaccounted  for  payments 
made  by  complainant.  Ward  v.  Trustees,  27  R.  I.  262,  61  A. 
651 ;  Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E.  665 ;  Henken  v. 
Schivicker,  73  N.  Y.  S.  656,  67  App.  Div.  196,  174  N.  Y.  298. 

Sec.  270.  Broker  liable  for  negligence  in  failing'  to  leam  lia- 
bility under  a  mortgage. 
A  real  estate  broker  contracted  for  his  principal  to  pur- 
chase land  for  a  certain  amount  and  assume  the  incumbrance 
as  part  of  the  consideration;  the  record  of  the  mortgage  on 
the  land,  while  showing  the  rate  of  interest  ordinarily  borne 
by  the  notes  secured  by  the  mortgage,  did  not  show  that  past 
due  notes  and  installments  of  interest  bore  an  increased  rate 
of  interest;  the  broker  did  not  ascertain  this  fact  and  over- 
paid the  vendor  in  consequence.  Held,  that  the  broker  was 
guilty  of  negligence  rendering  him  liable  for  the  overpayment. 
Hindricks  v.  Brady  (S.  D.  Sup.  '06),  108  N.  W.  332;  reversed 
and  modified  Sec.  270a. 


164  AMERICAN    LAW    REAL    ESTATE    AGENCY. 

Sec.  270a.  Broker  held  liable  only  for  failure  to  collect  for 
purchaser  interest  due  as  shown  by  the  record. 
A  broker  contracted  for  his  principal  to  purchase  land  for 
a  certain  amount.  There  was  a  mortgage  upon  the  land  to 
secure  several  notes.  The  record  definitely  stated  the  rate  of 
interest  borne  by  the  notes  to  be  six  per  cent,  per  annum;  but 
did  not  show  that  past  due  notes  and  installments  of  interest 
bore  an  increased  rate  of  interest.  The  broker  did  not  ascer- 
tain this  fact,  and  failed  to  investigate,  as  requested  by  the 
principal,  to  see  *hat  one  of  the  notes  had  been  paid.  The 
principal,  going  on  the  assumption  that  the  one  note  had  been 
paid,  and  that  this  bore  only  six  per  cent,  interest,  overpaid  for 
the  land,  and  sought  to  recover  from  the  broker.  Held,  that  the 
broker  had  a  right  to  rely  upon  the  recitals  of  the  record, 
which  definitely  stated  the  rate  of  interest,  as  had  the  prin- 
cipal, who  could  not  be  held  for  the  higher  rate,  and  hence 
there  could  be  no  recovery  from  the  broker  for  payments  of 
interest  in  excess  of  that  rate.  Judgment,  20  S.  D.  509,  108 
N.  W.  332,  reversed  on  rehearing.  Hinrichs  v.  Brady  (S.  D. 
Sup.   '09),  121  N.  W.  777. 

Sec.  271.  Broker  liable  for  negligence  for  loss  in  taking  mort- 
gage on  other  and  not  on  land  sold. 
A  mortgage  for  $1,200  taken  by  real  estate  brokers  as  se- 
curity for  the  price  of  property  sold  by  them,  was  on  prop- 
erty valued  at  $2,300,  on  which  there  was  a  first  mortgage 
for  $1,800,  no  security  was  taken  by  the  brokers  on  the  prop- 
erty sold,  and  the  purchaser  became  insolvent  in  about  three 
months  after  the  sale.  Held,  sufficient  to  sustain  a  finding 
that  the  broker  was  negligent  in  regard  to  the  security.  Har- 
low V.  Bartlett,  170  Mass.  584,  49  N.  E.  1014.  See  also  Sec. 
349. 

Sec.  272.  Broker  securing  conditional  sale  of  mortgage,  not 
consummated,  did  not  earn  commissions. 
Where  a  broker  employed  to  sell  the  note  and  mortgage 
given  by  a  cemetery  association  for  money  used  to  purchase 
real  estate  described  in  the  mortgage,  obtained  a  purchaser  on 
condition  that  the  latter 's  conveyancer  was  satisfied  with  the 


MORTGAGES,    BONDS,   LIENS.  165 

mortgage,  and  the  sale  was  not  consummated  because  said  con- 
veyancer refused  to  approve  the  same,  defendants  being  at  all 
times  ready  to  assign  the  note  and  mortgage  to  the  purchaser 
procured,  plaintiff  was  not  entitled  to  recover  commissions. 
Wiggen  v.  Holbrook,  190  Mass.  157,  76  N.  E.  463.  See  also 
Sees.  119,  193,  224,  449.  Shapiro  v.  Nadler,  99  N.  Y.  S.  879, 
51  Misc.  13. 

Sec.  273.    Fraud  of  agent  in  appropriating  money  received  to 
pay  off  mortgages. 

Defendant  applied  to  a  real  estate  agent  for  a  mortgage 
loan;  three  unsatisfied  mortgages  were  to  be  paid  with  the  pro- 
ceeds of  the  loan;  plaintiff  agreed  with  the  agent  to  make  the 
loan,  and  gave  the  agent  a  check  for  the  amount,  taking  a 
mortgage  on  the  property,  the  agent  assuring  him  that  he 
would  search  the  title  and  see  that  plaintiff  had  a  first  mort- 
gage, but  not  informing  him  of  the  outstanding  incumbrances; 
on  execution  of  the  mortgage  defendant  instructed  the  agent 
to  pay  off  the  three  outstanding  mortgages  with  a  part  of  the 
money  in  his  possession;  the  agent  paid  off  one  of  the  three 
mortgages  only  and  appropriated  the  rest  of  the  money.  Held, 
that  the  payment  of  the  amount  of  the  loan  to  the  agent  was 
a  payment  to  him  as  agent  of  the  defendant.  Henker  v. 
Schwicker,  73  N.  Y.  S.  656,  67  App.  Div.  196,  174  N.  Y.  298. 
See  also  Sec.  269. 

Sec.  274.    Failure  of  purchaser  to  execute  mortgage  defeated 
broker's  right  to  commissions. 

A  contract  for  the  purchase  of  real  estate  provided  that 
the  same  should  be  void,  at  the  will  of  the  vendor,  if  default 
should  be  made  by  the  vendee  in  completing  the  purchase  by 
making  the  due  cash  payments  and  executing  a  mortgage  for 
the  balance  of  the  purchase  money,  time  being  of  the  essence 
of  the  contract,  $500  cash  paid  upon  its  execution  to  be  for- 
feited to  the  vendor;  a  commission  contract,  executed  at  the 
same  time,  provided  that  the  vendor  would  pay  the  broker 
$2,500  commissions  if  the  contract  of  purchase  should  be  per- 
formed by  making  the  payments  and  executing  the  mortgage 


166  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

as  provided.  Held,  that  the  vendee  having  failed  to  make  the 
deferred  cash  payments  and  to  execute  the  mortgage,  the  ven- 
dor having  been  ready,  willing  and  able  to  perform  the  con- 
tract until  such  default,  could  take  advantage  thereof,  can- 
cel the  contract,  and  remove  the  cloud  from  the  record  by 
appropriate  legal  proceedings;  under  such  circumstances  com- 
missions are  not  earned.  Van  Norman  v.  Fitchette,  100  Minn. 
145,  110  N.  W.  851. 

Sec.  275.    In  computing  commissions  mortgage  treated  as  part 
of  purchase  price. 

Defendant  was  the  owner  of  certain  land  on  which  there 
was  a  mortgage,  for  the  payment  of  which  he  was  hot  person- 
ally bound,  and  he  gave  plaintiff  the  exclusive  sale  of  the  land 
for  sixty  days,  and  one-half  of  all  moneys  obtained  on  the 
sale  ther&of  over  $20  per  acre,  less  $455 ;  plaintiff  procured 
a  purchaser  to  whom  the  defendant  conveyed  the  land  sub- 
ject to  the  mortgage  which  the  purchaser  did  not  assume. 
Held,  that  in  determining  plaintiff's  compensation  the  amount 
of  the  mortgage  must  be  taken  as  a  part  of  the  purchase  price. 
Hohart  v.  Stewart,  99  Minn.  394,  109  N.  W.  704.  See  also 
Sees.  376,  369. 

Sec.  276.  Declaring  bonds  illegal  deprived  brokers  of  com- 
missions for  negotiating  sale. 
Plaintiff  entered  into  an  agreement  with  defendant  who 
had  agreed  to  take  certain  county  bonds  at  par  in  payment 
of  any  county  work  which  he  had  contracted  to  do,  to  sell  the 
bonds,  his  commissions  to  be  deducted  from  the  second  pay- 
ment of  money  realized  from  the  sale;  plaintiff  obtained  a 
purchaser  who  was  willing,  able  and  ready  to  purchase  the 
bonds,  but  before  the  second  block  was  delivered  the  issue  was 
declared  illegal,  their  delivery  perpetually  enjoined,  and  the 
purchaser  secured  by  the  plaintiff  never  paid  for  the  block 
delivered.  Held,  that  the  plaintiff  was  not  entitled  to  any 
commissions,  for  securing  a  purchaser,  as  no  second  payment 
was  ever  made.  Owen  v.  Ramsey,  23  Ind.  App.  285,  55  N.  E. 
247. 


MORTGAGES,   BONDS,   LIENS.  167 

Sec.  277.    Broker  selling  bonds  entitled  to  commissions  on 
procuring  party  ready  to  buy  on  terms  specified. 

A  broker  employed  to  sell  bonds  is  entitled  to  compensa- 
tion upon  producing  a  party  ready,  willing  and  able  to  buy 
on  the  terms  specified  by  the  vendor,  although  the  sale  is  not 
consummated,  where  the  broker  is  without  fault.  Thompson 
V.  City  of  Sea  Isle,  58  N.  Y.  S.  203,  27  Misc.  834. 

Sec.  278.     Broker  not  entitled  to  compensation  for  sale  of  bonds 
where  purchaser  withdrew  conditional  acceptance. 

Above  case  afterwards  reversed,  on  the  ground  that  the 
broker  who  was  promised  a  commission  to  be  paid  on  comple- 
tion of  the  sale,  was  not  entitled  thereto  where  the  purchaser 
whom  he  furnished  withdrew  a  conditional  acceptance  of  the 
bonds  offered.  Thompson  v.  City  of  Sea  Isle,  59  N.  Y.  S. 
596,  28  Misc.  494.     See  also  Sec.  556. 

Sec.  279.  Broker  transferring  bonds  by  delivery,  without  dis- 
closing principal,  liable  in  case  they  are  null  and  void. 
If  a  broker  or  other  agent  transfer  bonds  by  delivery,  with- 
out disclosing  who  is  his  principal,  he  is,  himself,  to  be  re- 
garded as  the  principal,  and  is  responsible  to  refund  the  money 
paid,  if  the  bonds  are  declared  null  and  void.  Herwig  v.  Rich- 
ardson, 44  La.  Ann.  703,  11  So.  135.  Compare  Cooper  v.  Illi- 
nois Central  B.  Co.,  57  N.  Y.  S.  925,  38  App.  Div.  22. 

Sec.  280.  Broker  selling  bonds  in  good  faith  not  liable  to  trust 
estate  because  illegally  sold. 
Bonds  belonging  to  a  trust  estate  were  presented  to  certain 
brokers  at  a  time  when  they  were  registered  in  the  name  of 
S,  executor;  some  days  later,  when  left  with  them  for  sale, 
they  had  been  discharged  from  registry  and  were  payable  to 
bearer;  it  did  not  appear  that  the  brokers  had  any  knowledge 
that  the  executor  was  dead,  or  of  the  condition  of  the  estate 
of  which  he  was  executor.  Held,  that,  on  a  sale  by  them  of 
such  bonds  they  were  not  liable  to  the  estate,  because  the 
bonds  were  in  fact  a  part  of  the  trust  fund  and  illegally  sold. 
Cooper  V.  III.  Cen.  R.  Co.,  57  N.  Y.  S.  925,  38  App.  Div.  22. 
Compare  Herwig  v.  Richardson,  44  La.  Ann.  703,  11  So.  135. 


168  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  281.  Authority  to  a  village  to  issue  bonds,  includes  au- 
thority to  employ  broker  to  dispose  of  them. 
Express  authority  of  a  village  to  borrow  money  and  issue 
bonds  therefor,  includes  implied  authority  to  employ  a  person 
to  procure  a  purchaser  for  the  bonds,  whether  he  be  a  broker 
or  not.  Armstrong  v.  Village  of  Ft.  Edwards,  159  N.  Y.  315, 
53  N.  E.  1116. 

Sec.  282.    Building  materials,  building  contract,  builder's  loan. 

In  an  action  against  a  real  estate  agent  to  compel  him  to 
convey  property  which  it  was  alleged  he  had  been  employed 
to  purchase  for  his  principal,  and  the  title  to  which  was  taken 
in  the  agent's  name  and  for  damages,  the  advance  which,  in 
the  meantime,  had  taken  place  in  the  price  of  building  mate- 
rial, was  held  too  remote  to  constitute  an  element  of  damages. 
Harrison  v.  Craven,  188  Mo.  590,  87  S.  W.  962. 

A  broker  was  held  entitled  to  recover  compensation  for  fur- 
nishing information  in  consequence  of  which  a  builder  entered 
into  a  contract  for  the  erection  of  a  building.  Kaestner  v. 
Oldham,  102  111.  App.  372. 

Where  there  is  a  special  agreement  to  that  effect,  a  broker 
who  secures  a  responsible  purchaser,  who  buys  subject  to  a 
builder's  loan,  is  not  entitled  to  his  commissions  till  the  pur- 
chaser has  earned  his  first  payment;  i.  e.,  when  the  second  tier 
of  beams  is  laid.     Leitner  v.  Boehm,  56  N.  Y.  S.  227. 

Sec.  283.  Broker  has  a  lien  on  securities  in  his  hands  for  his 
commissions. 
A  broker  is  entitled  to  a  lien  for  his  commissions  on  a  note 
and  mortgage  or  on  the  proceeds  thereof  left  in  his  possession 
to  negotiate  a  sale  thereof.  Peterson  v.  Hall,  61  Minn.  268, 
63  N.  W.  733;  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W. 
1027,  6G  N.  W.  692.  Contra,  State  Bank  v.  .  Cullen  (N.  D. 
Sup.  '09),  121  N.  W.  85. 

Sec.  284.      A  loan  broker  has  a  lien  for  his  fees  on  funds  com- 
ing into  his  hands. 
A  broker  employed  to  obtain  a  loan  of  money  upon  a  com- 
mission has  a  lien  for  his  fees  and  may  retain  them.     Vinton 
V.  Baldwin,  95  Ind.  433.     See  also  Sees.  285,  288. 


MORTGAGES,    BONDS,    LIENS.  169 

Sec.  285.    In  the  absence  of  a  contract  a  broker  has  no  lien  on 
funds  or  securities  of  his  principal. 

A  real  estate  broker  has  no  lien  for  services  on  a  certificate 
of  deposit  belonging  to  the  principal.  Robinson  v.  Stewart, 
97  Mich.  454,  56  N.  W.  853 ;  Arthur  v.  Sylvester,  105  Pa.  St. 
233;  Jones'  Appeal,  80  Pa.  St.  54;  May  field  v.  Turner,  180 
111.  332,  54  N.  E.  418.    See  also  Sec.  373. 

However,  there  are  cases  upholding  the  broker's  right  to 
such  special  lien.  Richards  v.  Gaskell,  39  Kan.  428,  18  P. 
494;  Carpenter  v.  Monsen,  92  Wis.  449,  65  N.  W.  1027,  66 
N.  W.  692 ;  Vinton  v.  Baldwin,  95  Ind.  433 ;  Gerry  v.  Brumage, 
46  Ind.  59. 

Sec.  286.    Where  broker  has  a  lien  it  exists  only  so  long  as 
he  holds  the  property. 

The  equitable  lien  of  a  broker  exists  only  so  long  as  he 
has  possession  of  the  land  or  title  papers,  and  his  debt  re- 
mains unbarred  by  the  statute  of  limitations.  Byers  v.  Dan- 
ley,  27  Ark.  77. 

Sec.  287.     The  lien  of  a  broker  for  commissions  is  confined  to 
the  specific  securities  affected. 

A  real  estate  broker,  who  is  not  an  attorney-at-law,  can  not 
claim  a  general  lien  on  all  securities  in  his  possession  for  ex- 
penses incurred  in  managing  some  of  such  securities,  but  the 
lien  is  confined  to  the  specific  securities  for  which  the  expenses 
were  incurred.  Carpenter  v.  Monsen,  92  "Wis.  449,  65  N.  W, 
1027,  66  N.  W.  692. 

Sec.  288.    A  broker  procuring  a  loan  for  a  trust  estate  has  no 
lien  thereon. 

In  the  absence  of  a  specific  agreement  a  broker  who  pro- 
cures a  loan  for  the  benefit  of  a  trust  estate  has  no  lien  on 
such  estate  for  his  commissions,  his  remedy  being  against  the 
trustee  personally.  Johnson  v.  Leman,  131  111.  609,  23  N.  E. 
435.     Compare  Sees.  284,  285. 


170  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  288a.  Instruction  that  if  broker  changed  contract  be- 
lieving defendant  would  see  before  signing,  not  prejudicial 
to  plaintiff. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
if  the  broker  caused  a  change  to  be  made  in  the  contract,  be- 
lieving the  defendant  would  see  the  change  when  the  contract 
was  delivered  to  him,  then  the  defense  of  fraud  on  the  part 
of  the  broker  in  so  changing  the  contract  was  not  sufficiently 
established  to  defeat  plaintiff's  claim  for  commissions,  was 
not  prejudicial  to  plaintiff.  Robertson  v,  Vasey,  125  Iowa, 
526,  101  N.  W.  271. 

Sec.  289.  Where  a  broker  took  the  excess  for  commissions  the 
expenses  of  releasing  a  Ifen  fell  on  the  principal. 

A  real  estate  agent  employed  to  sell  land  was  to  have  all 
obtained  over  a  certain  price.  Held,  that  the  expense  of  get- 
ting rid  of  an  existing  lien  on  the  lands  must  be  borne  by 
the  principal,  not  by  the  agent.  Wisehart  v.  Deitz,  67  Iowa, 
121,  24  N.  W.  752. 

Sec.  289a.  Commissions  assumed  by  vendee  not  a  lien  on 
property. 

Where  a  commission  for  the  sale  of  real  estate  due  from  the 
vendor  to  the  agent  was  assumed  by  the  vendee  at  the  time  of 
purchase  without  an  agreement  to  that  effect,  the  debt  does  not 
become  a  lien  on  the  land.  Mayfield  v.  Turner,  130  111.  332, 
54  N.  E.  418. 


PART  III. 

RIGHTS,  DUTIES  AND  LIABILITIES 
OF  PRINCIPAL  AND  AGENT. 

171 


CHAPTER  I. 


290.  Duty  or  obligation  of  an  agent  2i)'S.     Alterations    made    in   written 

to  his  employer  or  others.  instruments. 

291.  Concealment     and     its     eflfect  294.     Adverse  interests. 

upon   rights.  295.     Betrayal  of  trust. 

292.  Abandonment  of  employment,  296.     Collusion. 

and    of    contract    by    pur- 
chaser. 

Sec.  290.     Duty  or  obligation  of  an  agent  to  his  employer  and 
others. 

A  breach  of  duty  to  his  principal  deprives  a  broker  of  his 
right  to  commissions.  Wilkinson  v.  McCullough,  196  P^a.  St. 
205,  79  Am.  St.  R.  702,  46  A.  357.  Where  a  broker,  on  his 
principal  refusing  to  sign  a  contract  of  sale,  himself  signs  it 
and  puts  it  on  record,  this  is  a  breach  of  duty  and  deprives 
the  broker  of  his  right  to  recover  commissions.  Lease  v.  Christy, 
28  Pa.  Super.  Ct.  507.  See  also  Sec.  514.  A  broker  endeavor- 
ing to  sell  land  is  bound  to  communicate  to  his  principal  the 
real  facts  and  true  situation  with  reference  to  a  proposed  pur- 
chase of  the  property.  Raleigh,  R.  E.  &  T.  Co.  v.  Adams,  145 
N.  C.  161,  58  S.  E.  1008;  Harten  v.  Loeffler,  31  App.  (D.  C.) 
362. 

An  agent  having  authority  to  sell,  as  a  whole,  both  real  and 
personal  property  at  a  fixed  sum,  can  not,  without  the  consent 
of  his  principal,  take  to  himself  the  personal  property  on  re- 
ceiving the  authorized  sum  from  the  purchaser  for  the  real 
estate.  Northup  v.  Bathrick,  80  Neb.  36,  113  N.  W.  808. 
Ordinarily  it  is  not  the  broker's  duty  to  see  that  the  vendor 
has  a  good  title,  or  that  he  enters  into  an  enforceable  con- 
tract. King  v.  Knowles,  106  N.  Y.  S.  760,  122  App.  Div.  414; 
Corhin  v.  Mer.  &  Trad.  Bank,  106  N.  Y.  S.  573,  121  A.  D.  744. 

Where  an  agent,  with  authority  to  sell  his  principal's  land, 
reports  to  another  agent  of  the  principal  that  he  can  sell  so 

173 


174  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

as  to  net  the  principal  a  certain  sum,  and  that  he  is  selling 
for  a  greater  sum  and  will  retain  the  excess  as  commissions, 
and  no  contract  is  shown  that  he  shall  receive  any  specified 
amount  for  his  services,  the  agent  commits  no  fraud  by  fail- 
ing to  disclose  such  amount.  Denting  Inv.  Co.  v.  Meyer.  (Okla. 
Sup.  '07),  91  P.  846;  Fulton  v.  Waiters,  216  Pa.  56,  64  A.  860. 
Compare  Sec.  456.  The  employment  of  a  sub-agent  is  not 
ordinarily  a  breach  of  duty  to  the  principal.  Nodler  v.  Po- 
zorski,  124  Wis.  477,  102  N.  W.  892.  There  is  no  duty  de- 
volving upon  a  broker  to  tell  his  principal  of  other  lands  he 
has  listed  with  him  for  sale.     Gaty  v.  Sack,  19  Mo.  App.  470. 

All  agreements  between  a  real  estate  agent  or  broker  and  a 
proposed  purchaser  touching  the  subject  matter  of  his  employ- 
ment, which  are  not  disclosed  to  his  principal  should  be  scru- 
tinized closely  and  if  not  found  compatible  with  entire  integ- 
rity and  good  faith  toward  his  principal,  they  will  defeat 
the  agent's  claim  for  commission.  Hohart  v.  Sherburne,  66 
l\rinn.  171,  68  N.  W.  841;  Skinner  v.  Danville  (Fla.  Sun.  '09), 
49  S.  125.  See  also  Sees.  291,  314.  320.  Asrency  for  both 
principals  is  forbidden,  unless  both,  with  full  knowledge  there- 
of, consent.  Bates  v.  Copeland,  :McArthur  &  M.  (D.  C.)  50; 
Alexander  v.  N.  W.  Chr.  Uni.,  57  Ind.  466 ;  Lloyd  v.  Colston, 
5  Bush  (Ky.),  587;  Raisin  r.  Clark,  41  Md.  158;  Follanslefl 
V.  O'Reilly,  135  Mass.  80;  Horwitz  v.  Fewer,  128  IMich.  688, 
87  N.  W.  1034;  Friar  v.  Smith,  120  Mich.  411.  79  N.  W.  633, 
46  L.  R.  A.  229;  Leathers  v.  Canfield,  117  Mich.  277.  75  N. 
W.  612,  45  L.  R.  A.  33:  Sr.rihnPr  v.  Collar,  40  Mich.  375; 
Dartt  V.  Somnesym,  86  Minn.  55,  90  N.  W.  115;  De  Steiger 
V.  Hollington,  17  Mo.  Apt>.  382:  Pugsley  v.  Murray,  4  E.  D. 
Smith  (N.  Y.),  245;  Dunlan  v.  Richards,  2  E.  D.  Smith,  181; 
Watkins  v.  Consell,  1  E.  D.  Smith,  65;  Brierly  v.  Connelly, 
64  N.  Y.  S.  9,  31  Misc.  268 :  Norman  v.  Reuther,  54  N.  Y.  S. 
152,  25  Misc.  161 :  Rowe  v.  Stephens,  53  N.  Y.  621 :  Geery  v. 
Pollock,  44  N.  Y.  S.  673,  16  App.  Div.  321 ;  Ahel  v.  Dishrow, 
44  N.  Y.  S.  573,  15  App.  Div.  536 ;  Lansing  v.  Bliss,  33  N.  Y. 
S.  310,  86  Hun,  205;  Whitney  v.  Saunders,  49  N.  Y.  S.  1016, 
22  Misc.  539 ;  Tricks  v.  McKenna,  101  N.  Y.  S.  317,  115  App. 
Div.  701;  Haviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372; 
Lamh  v.  Baxter,  130  N.  C.  67,  40  S.  E.  850 ;  Maxwell  v.  West, 


PRINCIPAL   AND   AGENT.  175 

23  Pa.  Super.  Ct.  302 ;  Linderman  v.  McKenna,  20  Pa.  Super. 
Ct.  409 ;  Meyer  v.  Hanchett,  43  Wis.  246. 

Where  plaintiff  was  emploj'-ed  by  defendant  to  sell  certain 
city  property,  and  effected  an  exchange  of  real  estate  with  one 
P ;  after  the  transaction  was  completed  P  paid  plaintiff  $100 
for  his  services,  although  he  testified  he  had  not  previously 
employed  him.  Held,  there  being  no  charge  of  bad  faith,  that 
if  defendant  had  employed  plaintiff  to  sell  his  property,  and 
he  had  procured  a  sale  and  exchange  of  the  same  upon  terms 
satisfactory  to  defendant,  he  was  entitled  to  a  fair  compen- 
sation for  his  services.  Campbell  v.  Yager,  32  Neb.  266,  49 
N.  W.  181. 

An  agent  who  disregards  his  obligations  to  his  principal  can 
not  recover  compensation.  Jansen  v.  Williams,  36  Neb.  869, 
55  N.  W.  279.  No  legal  duty  rests  upon  a  broker  to  learn  facts 
affecting  the  value  of  lands  received  in  exchange,  and  for.  mis- 
representation made  in  good  faith,  where  the  principals  make 
the  contract.  Coe  v.  Ware,  40  Minn.  404,  42  N.  W.  205.  The 
violation  of  instructions  to  deliver  daily  receipts  of  money  re- 
ceived, is  a  breach  of  duty  which  warrants  the  principal  in 
terminating  the  agency.  Macferran  v.  Gallinger,  210  Pa.  St. 
74,  59  A.  435 ;  Featherstone  v.  Trone,  82  Ark.  381,  102  S.  W. 
196.  It  is  the  duty  of  a  broker  to  bring  the  minds  of  the 
\endor  and  purchaser  to  an  agreement  to  entitle  him  to  com- 
missions. Barnard  v.  Monarch,  33  How.  Pr.  (N.  Y.)  440,  1 
Abb.  Dec.  108,  3  Keyes,  203.    See  also  Sec.  33. 

Where  a  broker,  after  securing  a  customer,  made  a  contract 
with  the  latter  to  sell  the  land  at  an  advance  and  did  so,  his 
right  passing  to  an  assignee.  Held,  that  this  was  not  antag- 
onistic to  his  first  principal,  and  did  not  preclude  him  from 
recovering  the  commissions  promised.  Kinsland  v.  Grimshawe 
(N.  C.  Sup.  '07),  59  S.  E.  1000.  Evidence  that  a  broker,  on 
the  prospective  purchaser  saying  that  the  property  ought  to 
be  bought  for  $2.50  per  acre  less,  said  that  would  be  enough, 
does  not  conclusively  show  that  he  was  not  honestly  trying 
to  sell.  Leivis  v.  Susmilch,  130  Iowa,  203,  106  N.  W.  624. 
A  broker  guilty  of  bad  faith  forfeits  his  right  to  commissions. 
Bunn  V.  Reach,  214  111.  259,  73  N.  E.  419;  Woolf  v.  Sullivan, 
128  111.  App.  62,  affim'd  224  111.  509,  79  N.  E.  646;  McDon- 


176  AMERICAN    LAW    REAL    ESTATE    AGENCY. 

aid  V.  Maltz,  94  Mich.  172,  53  N.  W.  1058;  Wood  v.  Palmer, 
151  Mich.  30,  115  N.  W.  242,  14  D.  L.  N.  963;  Low  v.  Wood- 
bury, 95  N.  Y.  S.  336,  107  App.  Div.  298.  Good  faith  is  not 
shown  by  the  broker  clandestinely  also  representing  the  op- 
posite party.  Perkins  v.  Underhill,  103  N.  Y.  S.  25,  118  App. 
Div.  170. 

The  obligation  is  reciprocal,  and  the  owner,  in  revoking 
a  contract  with  his  broker,  must  act  in  good  faith.  Bailey  v. 
Smith,  103  Ala.  641,  15  So.  900;  Branch  v.  Moore,  84  Ark. 
462,  105  S.  W.  178 ;  Uphof  v.  Ulrich,  2  111.  App.  399 ;  Bealer 
V.  Creswell,  3  Md.  196;  Cadigan  v.  Crahtree,  186  Mass.  7,  70 
N.  E.  1033,  66  L.  R.  A.  982;  Haven  v.  Tartar,  124  Mo.  App. 
691,  102  S.  W.  21 ;  Alden  v.  Earle,  56  N.  Y.  Sup.  Ct.  366,  4 
N.  Y.  S.  548;  Neal  v.  Lehman,  11  Tex.  Civ.  App.  461,  34 
S.  W.  153;  Newton  v.  Co7iness  (Tex.  Civ.  App.  '08),  106  S. 
W.  892. 

The  act  of  the  vendor  in  secretly  paying  commissions  to  the 
purchaser's  agent  is  contrary  to  good  faith  and  the  policy  of 
the  law.  Lightcap  v.  Nicolai,  34  Pa.  Super.  Ct.  189.  And  in 
such  case  the  purchaser  has  a  right  of  action  against  the  ven- 
dor to  recover  the  amount  thereof.  Grant  v.  Gold  Ex.,  etc., 
Syn.  (1900),  1  Q.  B.  (Eng.)  233,  69  L.  J.  Q.  B.  150,  82  L.  T. 
R.  N.  S.  5,  48  W.  R.  280.  Where  an  agent  bought  his  prin- 
cipal's land  by  sheriff's  deed  good  faith  was  violated,  and 
the  conveyance  will  be  set  aside.  Smeltzer  v.  Lombard,  57 
Iowa,  294. 

A  broker  who,  in  association  with  others,  purchases  his  prin- 
cipal's property,  where  all  is  open  and  he  acts  in  good  faith, 
is  entitled  to  recover  commissions  on  the  sale.  Reed's  Ex.  v. 
Reed,  82  Pa.  St.  420;  Texas  Brok.  Co.  v.  John  Bakly  &  Co. 
(Tex.  Civ.  App.  '08),  109  S.  W.  1001;  Blount  v.  Robeson,  3 
Jones  (N.  C),  Eq.  73.  Where  an  owner  of  real  estate,  which 
he  has  listed  with  an  agent  for  sale  for  a  definite  price,  sells 
the  same  unknowingly,  through  a  go-between,  to  whom  the 
deed  is  made,  to  one  who  was  induced  to  purchase  it  by  the 
efforts  of  the  agent,  but  in  good  faith,  and  in  ignorance  of  the 
real  purchaser,  and  for  a  consideration  less  than  that  given 
the  agent,  is  not,  there  being  no  exclusive  agency,  liable  for 
the  commission  agreed  to  be  paid  for  the  production  of  a  pur- 


PRINCIPAL   AND   AGENT.  177 

chaser  ready,  able  and  willing  to  pay  the  price  fixed.  Quist 
V.  Goodfellow,  99  Minn.  509,  110  N.  W.  65.  Compare  Sec.  444. 
A  real  estate  agent  owes  to  his  principal  the  duty  of  making 
a  full,  fair  and  prompt  disclosure  of  all  the  circumstances 
affecting  the  principal's  rights  or  interests;  whatever  advan- 
tages accrue  to  him  by  the  violation  of  that  duty,  he  must 
make  good  to  his  principal ;  if,  after  he  has  in  fact  contracted 
to  sell  the  land  to  a  third  person  at  an  advanced  price,  he 
purchases  the  land  himself  from  his  principal,  without  disclos- 
ing the  contract,  and  if  he  thereafter  completes  the  sale,  he 
renders  himself  liable  to  his  principal  in  damages.  Kingsley 
V.  Wheeler,  95  Minn.  360,  104  N.  W.  543.  See  also  Sec.  389. 
A  broker  employed  to  purchase  property  should  inform  his 
principal  of  the  lowest  price  at  which  it  may  be  bought;  a 
failure  to  do  this  is  a  breach  of  the  duty  he  owes  his  princi- 
pal.    Carpenter  v.  Fisher,  175  Mass.  9.  55  N.  E.  479. 

A  real  estate  broker  had  found  a  purchaser  at  the  price 
stipulated  for  land  purported  to  be  owned  by  his  principal,  and 
was  then  referred  by  him  to  other  tenants  in  common,  with 
whom  he  subsequently  made  terms  at  a  higher  price,  except 
two-eighths  interest  owned  by  them,  but  did  not  disclose  this 
to  his  first  principal.  Held,  there  was  no  duty  owing  by  the 
agent  as  to  the  outstanding  two-eighths,  and  it  was  not  incum- 
bent upon  him  to  inform  his  principal.  Black  v.  Barr,  14  Pa. 
Super.  Ct.  98,  651. 

Where  no  other  instruction  defining  a  broker's  duty  is  given, 
it  is  error  to  refuse  an  instruction  that  the  duty  of  a  broker 
i<5  to  bring  the  buyer  and  seller  together  and  effect  a  purchase 
of  the  property  according  to  the  terms  agreed  on  by  the  seller 
and  the  broker,  and  that  the  latter  is  not  entitled  to  commis- 
sion for  an  unsuccessful  effort  to  effect  a  sale.  West  v.  Demmef 
128  Mich.  11,  87  N.  W.  95.    See  also  Sec.  543. 

A  complaint  for  a  broker's  commissions  under  a  contract, 
whereby  defendant  agreed  that,  in  consideration  of  plaintiff's 
procuring  a  contract  to  be  made  with  E  for  the  purchase  of 
certain  land  of  the  defendant,  plaintiff  should  receive  a  com- 
mission in  the  event  of  the  closing  of  title,  and  only  in  the 
event  that  title  should  pass,  except  for  default  of  defendant, 
is  insufficient  in  alleging  only  that  plaintiff  procured  a  con- 


178  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

tract  for  the  purchase  of  the  land  to  be  executed  by  defendant 
and  E,  and  that  because  of  the  default  of  defendant  the  prem- 
ises were  not  conveyed;  it  should  show  that  E  was  ready  to 
take  title  under  the  terms  and  at  the  time  provided  in  the 
contract,  and  the  particular  acts  of  omission  of  defendant  which 
prevented  the  passing  of  the  title.  Davis  v.  Silverman,  90  N. 
Y.  S.  589,  98  App.  Div.  305. 

In  an  action  against  their  principal  for  damages  for  the  loss 
of  commissions  caused  by  the  refusal  to  accept  the  deed  and 
carry  out  the  contract  where  the  defense  is  want  of  mental 
capacity  to  contract,  evidence  of  the  actual  value  of  the  prop- 
erty is  competent  only  when  offered  to  show  that  the  price 
offered  was  so  exorbitant  as  to  be  inconsistent  with  good  faith 
on  the  part  of  the  brokers  in' undertaking  to  contract  for  the 
purchase  at  the  price  authorized.  Cavender  v.  Waddingham, 
5  Mo.  App.  457. 

Unless  the  principal  is  fully  advised  of  all  the  facts  a  broker 
employed  to  buy  real  estate  can  not  sell  to  his  principal  prop- 
erty in  which  he  has  an  individual  interest.  England  v.  Bur- 
nett, R.  E.,  etc.,  Co.,  79  Mo.  App.  294. 

Nor  may  a  broker  employed  to  sell  property  become  the 
buyer  thereof.  Cornwall  v.  Foord,  96  111.  App.  366;  Smith  v. 
Toivnsend,  109  Mass.  500;  Merriam  v.  Johnson,  86  ^Minn.  61, 
90  N.  W.  116 ;  Gardner  v.  Ogden,  22  N.  Y.  327 ;  Harrison  v. 
McHenry,  9  Ga.  164;  Ames  v.  Pt.  Huron  Log,  etc.,  Co.,  11 
Mich.  139 ;  Robertson  v.  Western  M.  &  F.  Ins.  Co.,  36  Am.  Dee. 
673;  Moseley  v.  Back,  3  Munf.  (Va.)  232;  Clark  v.  Bird,  66 
N.  Y.  App.  Div.  284,  72  N.  Y.  S.  769. 

If  a  real  estate  owner  places  property  in  the  hands  of  a 
broker  for  sale  at  a  fixed  price,  and  the  broker  sells  it  for 
more  to  one  for  whom  he  is  acting  as  agent  for  the  investment 
of  money,  and  secretly  retains  the  excess  he  commits  a  fraud 
upon  the  seller  and  the  purchaser  for  both  of  whom  he  acts 
as  agent,  and  subjects  himself  to  a  double  recovery  of  the  ex- 
cess. Lewis  V.  Dennison,  2  App.  Cas.  (D.  C.)  387;  Hannon  v. 
Prentiss,  124  Mich.  417,  83  N.  W.  102;  Marsh  v.  Buchan,  46 
N.  J.  Eq.  595,  22  A.  128.     See  also  Sec.  964. 

To  entitle  a  broker  to  recover  commissions  for  selling  de- 
fendant's property,  he  must  show  an  employment,  the  rendi- 


PRINCIPAL   AND   AGENT.  179 

tion  of  services  at  defendant's  request,  and  that  he  acted  in 
good  faith  for  their  best  interests.  Roome  v.  Robinson,  90 
N.  Y.  S.  1055,  99  App.  Div.  143. 

A  broker  employed  to  sell  real  estate  for  $105,000  or  more 
is  not  entitled  to  recover  commissions  where  he  might  have 
procured  a  purchaser  at  $110,000  instead  of  $105,000.  Lich- 
tenstein  v.  Mott,  91  N.  Y.  S.  57,  99  App.  Div.  570;  Harrison 
v.  Lakeman,  189  Mo.  581,  88  S.  W.  53.    See  also  Sec.  412a. 

A  purchase  by  a  real  estate  agent  of  the  property  in  his 
hands  for  sale,  without  the  knowledge  of  his  principal,  is  suffi- 
cient to  avoid  the  transaction,  no  matter  if  there  was  no  ac- 
tual fraud  or  no  injury  to  the  principal  resulted.  Butler  v. 
Agnew,  9  Cal.  App.  327,  99  P.  395. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
is  not  liable  to  the  principal  for  failing  to  exercise  proper 
diligence  to  obtain  a  purchaser,  nor  for  failing  to  communi- 
cate to  the  principal  the  fact  that  he  has  procured  an  intend- 
ing purchaser;  but  he  may  terminate  his  efforts  without  no- 
tice to  the  principal.  Siegcl  v.  Rosenzweig,  114  N.  Y.  S.  179, 
129  App.  Div.  547. 

A  real  estate  broker  can  not  be  held  liable  for  representing 
to  an  intending  purchaser,  that  the  owner  would  not  accept 
less  than  the  sum  named  by  tlie  broker  for  the  premises,  though 
the  owner  had,  in  fact,  agreed  with  him  to  sell  at  a  lower  fig- 
ure, in  the  absence  of  any  confidential  relations  between  the 
broker  and  the  intending  purchaser  or  fraud  to  prevent  in- 
quiry or  investigation  by  such  purchaser.  Ripy  v.  Cronan 
(Ky.  Ct.  App.  '09),  115  S.  W.  791. 

An  agent  to  l)uy  lands  for  his  principal  can  not  buy  of  him- 
self; and  an  agent  to  sell  lands  for  his  principal  can  not  sell 
to  himself;  nor  can  an  agent  to  receive  payments  for  his  prin- 
cipal, bind  the  latter  by  the  receipt  of  money  due  from  him- 
self.    Mechem  on  Agency,  Sec.  68. 

Where  a  selling  broker  is  aware  that  a  customer  is  resolved 
and  prepared  to  pay  the  price  asked,  he  should  not  send  the 
customer  to  his  principal  to  n<^gotiate  directly,  without  com- 
municating to  the  principal  his  knowledge  of  the  customer's 
resolution ;  and,  if  he  withholds  such  information  from  the 
principal,  he  forfeits  any  claim  for  commissions,  even  though 


180  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

the  principal  obtained  from  the  customer  the  full  price  origi- 
nally asked.    Carter  v.  Owens  (Fla.  Sup.  '09),  50  S.  641. 

Sec.  291.     Concealment  and  its  effect  upon  rights. 

Where  defendants,  who  were  employed  by  plaintiff  to  find  a 
purchaser  for  a  lot,  after  finding  a  purchaser  and  receiving 
part  of  the  price,  knew  before  the  deed  was  delivered  that  the 
purchaser  had  sold  at  an  advance,  but  did  not  inform  plaintiffs, 
his  claim,  if  any,  against  them,  is  for  damages,  for  which  an 
action  at  law  is  the  proper  remedy.  Dickinson  v.  Updike  (N.  J. 
Err.  &  App.),  49  A.  712.  The  rule  that  a  fiduciary  land  agent 
is  bound  to  make  the  fullest  disclosure  of  all  matters  connected 
with  property  bought  by  himself  from  his  principal  extends  to 
avoid  a  subsequent  sale  of  the  property  by  such  agent  to  a 
party  cognizant  of  the  concealment.  Norris  v.  Taylor,  49  111. 
17.  Compare,  Collins  v.  Case,  28  Wis.  230.  A  real  estate 
broker  who  conceals  from  his  principal  the  name  of  the  pur- 
chaser whom  he  procures,  and  the  fact  that  such  purchaser  has 
bought  an  adjoining  lot,  and  does  this  for  the  avowed  purpose 
of  preventing  the  principal  from  advancing  the  price,  is  not 
entitled  to  commissions.  Wilkinson  v.  McCullough,  IQ^  P"  *^t. 
205,  46  A.  357.     See  also  Sec.  290. 

Where  the  broker  possesses  an  interest,  in  addition  to  his  em- 
ployment, in  the  transaction  he  has  contracted  to  negotiate,  and 
fails  to  disclose  it  to  his  principal,  such  omission  of  duty  deprives 
him  of  the  right  to  compensation  for  his  services.  Collins  v. 
McClurg,  1  Colo.  App.  348,  29  P.  299 ;  Jeffries  v.  Bobbins  66 
Kan.  427,  71  P.  852;  De  L'Archerie  v.  Rutherford  (Wash.  Sup. 
'09),  102  P.  1033;  Buck  v.  Hozeboom  (Neb.  Sup.  '02),  90  N.  W. 
635;  Rijan  v.  Kahler  (Tex.  Civ.  App.  '98),  46  S.  W.  71.  All 
agreements  between  a  real  estate  agent  or  broker  and  a  pro- 
posed purchaser  touching  the  subject  matter  of  his  employment, 
which  are  not  disclosed  to  his  principal  should  be  scrutinized 
closely,  and  if  not  found  compatible  with  entire  integrity  and 
good  faith  toward  his  principal,  they  will  defeat  the  agent's 
claim  for  commissions  from  his  principal.  Hobart  v.  Sherburne, 
66  Minn.  171,  68  N.  W.  841.  See  also  supra  and  Sees.  290,  314, 
320.  Where  a  sub-agent  allows  the  owner  to  go  on  and  deal 
with  a  prospective  purchaser  as  though  he  was  free  from  obli- 


PRINCIPAL   AND   AGENT.  181 

gations  for  commissions,  and  lowers  his  price  to  him  in  con- 
sequence, while  concealing  the  fact  that  he,  the  said  sub-agent, 
was  acting  for  the  agent,  this  conduct  prevents  the  latter,  on  a 
sale  being  made,  from  recovering  from  the  seller  any  com- 
pensation for  his  services.  Mullen  v.  Boivcn,  22  Ind.  App.  294, 
53  N.  E.  790.  "Where  the  broker's  name  was  signed  to  a  paper 
containing  an  offer  to  purchase  the  property  and  his  participa- 
tion was  not  sought  to  be  concealed,  and  he  acted  opeiily  and 
fairly,  his  right  to  recover  commissions  was  not  affected  by  the 
fact  that  he  was  one  of  the  intended  purchasers.  Reed's  Ex.  v. 
Beed,  82  Pa.  St.  420.  Where  an  agent  purchases  the  property 
at  a  grossly  inadequate  price,  by  the  concealment  of  facts  and 
information  relating  thereto,  which  it  was  his  duty  to  disclose, 
the  sale  will  be  set  aside.    Norris  v.  Taylor,  49  111.  17. 

Where  an  agent  employed  to  sell  a  ranch  introduced  to  the 
owner  a  customer  who,  at  the  time,  had  not  the  money  to  buy, 
but  w'as  expecting  to  get  money,  and  did  afterwards  get  the 
money  and  completed  the  purchase  from  the  owner  on  sub- 
stantially the  same  terms  as  those  furnished  to  the  agent  by 
the  owner,  the  agent  was  entitled  to  his  commissions;  the  fact 
that  the  connection  of  the  agent  with  the  transaction  was,  by 
agreement  between  the  agent,  the  owner  and  a  third  party, 
through  whom  the  purchaser  was  introduced  to  the  owner,  kept 
secret  from  the  purchaser,  did  not  taint  the  contract  with  dis- 
honesty so  as  to  defeat  the  agent  from  recovering  his  commis- 
sions.   McCampbell  v.  Cavis,  10  CuloApp.  242,  50  P.  728. 

Where  an  agent  for  the  sale  of  land  is  to  receive  as  his  com- 
pensation all  above  a  minimum  sum  per  acre  and  a  fixed  sum 
in  addition,  and  the  agent  sells  the  land  for  an  amount  above 
the  minimum,  but  conceals  that  fact  and  reports  to  the  prin- 
cipal that  he  has  sold  it  at  the  minimum,  he  will  not  be  entitled 
to  recover  the  additional  fixed  sum  agreed  upon.  Fulton  v.  Wai- 
ters, 28  Pa.  Super.  Ct.  269,  Rev.  216  Pa.  56,  64  A.  860.  (This 
ruling  was  reversed  by  the  Supreme  Court  and  the  broker  held 
entitled  to  the  additional  fixed  sum,  on  the  ground  tliat  there 
was  no  relation  of  trust  and  confidence  that  required  from  the 
broker  a  disclosure  to  the  owner  of  the  terms  of  the  sale.) 

Where  the  agents  for  the  sale  of  land  conceal  from  the  pur- 
chaser the   fact  that  they  are  part  owners  of  the  land,  but 


182  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

instead  express  an  intention  to  purchase  an  interest  themselves 
upon  the  same  terms  as  they  are  selling  to  the  purchasers,  such 
representations  would  constitute  such  a  fraud  as  would  avoid 
the  purchase.     Wren  v.  Moncure,  95  Va.  369,  28  S.  E.  588. 

In  an  action  by  a  real  estate  agent  for  commissions,  the  ownier 
testified  that  when  the  agent's  sub-agent  introduced  a  pur- 
chaser, the  latter  stated  he  wished  to  deal  directly  with  the 
owner,  who  then  stated  a  less  price  than  fixed  in  the  contract 
of  employment;  the  owner  testified  that  the  sub-agent  and  the 
purchaser  stated  that  they  made  no  arrangement  mth  the  agent, 
that  the  sub-agent  said  nothing  about  commissions,  and  that  he 
(the  owner)  told  the  purchaser  and  sub-agent  that  if  the  agent 
had  sold  the  land,  he  would  have  to  let  it  go;  the  sub-agent  tes- 
tified that  he  asked  the  owner  if  the  latter  would  not  have 
trouble  with  the  agent  about  the  commissions;  to  which  the 
owner  replied  that  he  would  not,  as  he  was  selling  the  farm; 
the  sub-agent  testified  that  he  told  the  owner  he  did  not  charge 
any  commission,  as  he  would  get  that  from  the  agent;  the  pur- 
chaser substantiated  the  sub-agent's  testimony;  there  was  no 
.evidence  to  show  that  the  owner  knew  that  the  sub-agent  was 
acting  for  the  agent.  Held,  that  the  question  whether  the  sub- 
agent  concealed  such  fact  from  the  owner  should  have  been 
submitted  to  the  jury.  Mullen  v.  Bowen,  22  Ind.  App.  294,  51B 
N.  E.  790. 

Where  a  broker  reports  an  offer  for  property  to  his  principal, 
without  stating  by  whom  the  offer  is  made,  and  afterwards  a 
sale  of  the  same  property  is  effected  through  another  broker  at 
the  same  price  first  reported  and  to  the  same  purchaser  and  he 
receives  a  commission  therefor,  the  first  broker  can  not  recover 
in  an  action  against  the  vendor  for  the  commissions,  unless  it 
appears  that  the  latter  at  the  time  of  the  sale  was  aware  of 
the  facts  above  stated,  or  that  notice  of  the  same  was  given 
by  the  broker  before  the  completion  of  the  contract  with  and 
payment  of  commissions  to  the  second  broker.  Tinge  v.  Moale. 
25  I^Id.  480;  JungUut  v.  Gindra,  118  N.  Y.  S.  942;  Souk  v. 
Bearing,  87  Me.  365,  32  A.  998.    Compare  Sec.  581. 

Securing  a  purchaser  whose  name  is  concealed  from  the  owner 
of  the  property  is  insufficient  to  entitle  the  broker  to  commis- 
sions.   Hayden  v.  Grillo,  35  Mo.  App.  647;  Sharpley  v.  Moody, 


PRINCIPAL   AND   AGENT.  183 

44  S.  650,  152  Ala.  549;  Nance  v.  Smythe,  118  Tenn.  349,  99 
S.  W.  698;  Wiggins  v.  Wilson,  55  Fla.  346,  45  S.  1011;  Duclos 
V.  Cunningham,  102  N.  Y.  678,  6  N,  E.  790.  Compare  Biitman 
V.  Butman,  213  111.  104,  72  N.  E.  821;  Hovey  v.  Aaron,  113 
S.  W.  718,  133  Mo.  App.  573. 

Where  an  agent  does  not  disclose  his  agency  and  name  his 
principal,  he  becomes  himself  principal,  unless  the  fact  of  the 
agency  is  otherwise  known  to  the  other  party.  Wheeler  v.  Reed, 
36  111.  81 ;  Milliken  v.  Jones,  11  111.  372 ;  Warren  v.  Dickson,  27 
111.  115 ;  Merrill  v.  Wilson,  6  Ind.  416 ;  Pierce  v.  Johnson,  34 
Conn.  264 ;  McClellan  v.  Parker,  27  Mo.  162 ;  Roijcc  v.  Allen,  28 
Vt.  234. 

A  contract  for  the  sale  of  real  estate,  made  between  the  owner 
and  a  firm  of  real  estate  brokers  with  whom  the  owner  has  listed 
the  property  for  sale  is  valid  and  enforceable,  where  there  was 
no  fraud  or  deception  practiced,  and  the  brokers  fairly  stated 
to  the  owner  the  fact  that  they  did  not  purchase  for  themselves, 
but  on  an  order  from  another  broker  for  a  principal  whose  name 
they  were  not  at  liberty  to  disclose.  Woodward  v.  Davidson, 
150  Fed.  840;  reversed,  on  another  ground,  156  Fed.  915. 

A  real  estate  broker,  having  a  customer  desirous  of  purchasing 
property  of  a  particular  character,  need  not,  before  entering 
into  negotiations  to  secure  the  agency  from  the  seller  to  pro- 
cure a  purchaser  of  such  property,  disclose  the  facts  to  the 
owner  that  he  has  a  customer  and  that  he  will  probably  effect  a 
sale,  no  relation  of  agency  existing  between  the  broker  and  the 
customer.     Larson  v.  Thoma  (Iowa  Sup.  '09),  121  N.  W,  1059. 

Sec.  292.    Abandonment  of  employment  and  of  contract  by 
purchaser. 

Where  a  real  estate  agent  fails  to  sell  the  property  and  directs 
a  prospective  purchaser  to  trade  with  the  owner,  who  sells  the 
property,  relying  on  the  broker's  abandonment  of  the  employ- 
ment, the  broker  can  not  recover  commissions.  E nocks  v.  Pax- 
ton,  87  ]\Iis8.  660,  40  S.  14.  A  broker  employed  by  the  owner 
of  land  to  secure  a  purchaser  for  it  produced  two  persons  who 
obtained  a  written  agreement  from  the  owner  to  sell  the  land 
to  them,  but  did  not  sign  the  agreement,  and  afterwards  aban- 
doned the  deal  by  refusing  to  take  a  deed.     Held,  that  th,e 


184  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

broker  was  not  entitled  to  a  commission.    Kampf  v.  Dreyer,  103 
N.  Y.  S.  962,  119  App.  Div.  134.     See  Sec.  33. 

A  sale  of  property  negotiated  by  a  broker  for  $38,000,  pro- 
vided for  the  payment  in  cash  of  $500,  a  payment  of  $4,500 
on  a  later  date,  when  the  deed  was  to  be  delivered,  and  a  mort- 
gage for  the  remainder  given,  together  with  a  bond  for  improve- 
ments to  be  placed  on  the  property  by  the  purchaser;  on  the 
date  when  the  deed  was  to  be  given  the  purchaser  was  unable 
to  comply  with  the  contract,  but  paid  $3,000,  and  further  time 
was  granted ;  a  few  months  later  the  purchaser,  still  being  unable 
to  comply  with  the  contract,  gave  his  note  to  the  vendor  for 
$2,000,  and  the  contract  was  cancelled.  Held,  that  the  broker 
was  not  entitled  to  commissions.  Riggs  v.  Turnbull,  105  Md. 
135,  66  A.  13,  8  L.  R.  A.  (N.  S.)  824.  A  broker  who  abandons 
his  employment  is  not  entitled  to  commissions  on  a  sale  after- 
wards made  to  his  customer  by  the  principal  or  through  an- 
other agent.  Everett  v.  Parrel,  11  Ind.  App.  185,  38  N.  E.  872; 
Watts  V.  Howard,  51  111.  App.  243 ;  Lipe  v.  Ludwick,  14  111. 
App.  372 ;  Singer,  etc.,  Stone  Co.  v.  Hutchison,  61  111.  App.  308 ; 
Bigdon  v.  Strong,  128  111.  App.  447 ;  Moore  v.  Cresap,  109  Iowa 
749,  80  N.  W.  399;  Cathcart  v.  Bacon,  47  INIinn.  34,  49  N.  W. 
331;  Fairchild  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15; 
Cullen  V.  Bell,  43  ]\Iinn.  226,  45  N.  W.  428 ;  Tooker  v.  Duck- 
worth, 107  ]\Io.  App.  231,  80  S.  W.  963;  Barnard  v.  Monnott, 
34  Barb.  (N.  Y.)  90;  Meyer  v.  Straus,  58  N.  Y.  S.  904,  42  App. 
Div.  613;  Getzler  v.  Boehm,  38  N.  Y.  S.  52,  16  Misc.  390; 
Bouscher  v.  Larkins,  84  Hun  288,  32  N.  Y.  S.  305;  Hay  v. 
Piatt,  21  N.  Y.  S.  362,  66  Hun  488;  Marcus  v.  Kenneally,  43 
N.  Y.  S.  1056,  19  Misc.  511 ;  H alley  v.  Townsend,  2  Hilt.  (N.  Y.) 
34;  Miller  v.  Vining,  98  N.  Y.  S.  466,  112  App.  Div.  304. 

A  mere  refusal  by  the  broker,  at  the  request  of  the  purchaser, 
to  again  see  the  seller  and  endeavor  to  obtain  a  lower  price, 
does  not  constitute  an  abandonment  of  his  employment,  or  bar 
commissions  on  a  sale  afterward  made  by  the  owner  to  such 
customer.  McCormack  v.  Henderson,  100  IMo.  App.  647,  75 
S.  W.  171.  Where  the  owner  of  property  employed  a  broker  to 
sell  it,  and  after  a  month  or  two  it  was  agreed  that  the  broker's 
authority  should  cease,  and  three  or  four  years  after  the  owner 
sold  the  property  to  one  with  whom  the  broker  had  negotiated 


PRINCIPAL   AND   AGENT.  18t> 

with  two  years  prior  thereto,  he  was  not  entitled  to  commis- 
sions, although  he  called  the  attention  of  the  purchaser  to  the 
property  and  introduced  him  to  the  owner.  Staehlin  v.  Kramer, 
118  Mo.  App.  329,  94  S.  W.  785. 

Sec.  293.    Alterations  made  in  written  instruments. 

"Where,  after  a  contract  of  sale  was  signed  by  the  vendor,  the 
purcliaser  made  material  alterations  and  then  signed  it,  and  the 
vendor  refused  to  re-execute,  there  was  no  meeting  of  minds 
and  the  broker  can  not  recover  commissions.  Bruce  v. 
Hurlhut,  66  N.  Y.  S.  1127,  54  App.  Div.  616.  See  also 
Sec  33.  A  contract  for  the  sale  of  land  was  executed  by 
the  owner  and  left  with  his  agent  for  the  sale  of  such 
land  for  delivery  to  the  purchaser;  the  agent  altered  the 
instrument  by  substituting  the  name  of  another  person, 
changed  both  the  consideration  and  the  rate  of  interest, 
and  delivered  it  to  such  other  person.  Held,  that  the  contract 
so  delivered  was  not  the  contract  of  the  owner.  Ballou  v.  Berg- 
vendsen,  9  N.  D.  285,  83  N.  W.  10.    See  also  Sec.  55. 

Sec.  294.    Adverse  interests. 

An  agent  in  charge  of  real  estate  can  not  acquire  a  tax-title 
adverse  to  his  principal,  who  has  failed  to  furnish  him  with 
means  to  pay  the  taxes,  and  the  burden  is  on  the  agent  to  show 
that  his  agency  had  terminated  when  he  acquired  the  title. 
Bowman  v.  Officer,  53  Iowa,  640. 

Sec.  295.    Betrayal  of  trust. 

If  a  real  estate  agent  authorized  to  sell  land  at  a  given  price, 
three  years  after,  when  the  value  has  greatly  advanced,  and  is 
rapidly  rising,  sells  the  same  at  the  price  named,  and  at  a  great 
sacrifice,  without  informing  his  principal  of  the  rise  in  value, 
this  would  be  such  a  fraud  upon  the  principal  that  a  court  of 
equity  would  refuse  to  enforce  a  conveyance  to  the  purchaser. 
Proudfoot  V.  Wightman,  78  111.  553. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  the  broker  made  no  pretence  that  defendant  em- 
ployed him,  but  asserted  that  he  was  acting  at  the  instance 
of  the  purchaser;  notwithstanding  the  express  unwillingness  of 


186  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

defendant  to  make  the  sale,  he  testified  that,  without  the  knowl- 
edge of  defendant,  he  called  the  purchaser's  attention  to  his 
right  to  purchase  as  stipulated  in  the  lease;  that  defendant  re- 
fused to  convey,  claiming  that  she  was  not  bound  by  the  lease, 
that  the  broker  urged  the  purchaser's  claim,  and  that  defendant 
yielded  when  advised  by  her  counsel  so  to  do.  Held,  that  the 
broker  was  not  entitled  to  commissions.  31  orris  v.  Poundt,  99 
N.  Y.  S.  844,  51  Uhc.  6 ;  Knake  v.  Grisicold,  93  N.  Y.  S.  459, 
104  App.  Div.  137;  Horton  v.  Loffler,  31  App.  D.  C.  362. 

In  an  action  by  a  grantor  of  realty  to  set  aside  a  sale,  on  the 
ground  that  the  agent  employed  by  her  to  secure  a  purchaser, 
in  fact  purchased  the  property,  while  she  thought  the  sale  was 
being  made  to  another;  it  appeared  that  the  agent  had  induced 
her  to  sign  a  contract  of  purchase  with  such  other  party,  the 
agent  agreeing  to  execute  with  the  other  a  bond  accompanying 
a  mortgage  which  was  to  be  given  to  the  grantor ;  subsequently, 
a  deed  was  given  running  to  the  agent ;  the  bond  was  signed  by 
the  agent  and  the  other,  and  the  mortgage  signed  by  the  agent 
alone  was  kept  by  him  for  the  purpose  of  record;  after  the 
grantor  learned  that  the  deed  ran  to  the  agent  she  informed 
him,  on  the  payment  of  the  interest  on  the  purchase  money 
and  mortgage  given  by  him,  that  she  would  put  the  money  in 
bank  until  she  got  her  property  back,  and  stated  that  she  was 
going  to  consult  a  lawyer.  Held,  that  the  acceptance  of  the 
money  did  not  constitute  a  ratification  of  the  transaction.  Clark 
V.  Bird,  72  N.  Y.  S.  769,  66  App.  Div.  284. 

Sec.  296.    Collusion. 

In  an  action  for  a  broker's  services,  an  answer  alleging  that 
the  proposed  purchaser  was  plaintiff's  uncle,  and  that  they 
entered  into  collusion,  whereby  the  uncle  was  to  pretend  to 
defendant  that  he  was  ready  and  willing  to  purchase  the  lands 
and  pay  for  the  same  in  cash,  and  that  defendant,  under  the 
belief  that  the  proposed  purchaser  was  acting  in  good  faith 
fixed  a  day  and  place  for  the  execution  of  the  deed,  when 
plaintiff  and  his  uncle  questioned  the  description  for  the  pur- 
pose of  delay,  and  that  before  the  adjourned  day  fixed  for  the 
execution  of  the  deed,  defendant  was  informed  that  the  pro- 
posed purchaser  would  not  take  the  land  until  he  had  had  an 


PRINCIPAL   AND   AGENT.  187 

opportunity  to  reinspeet  it,  which  he  never  did,  states  a  suffi- 
cient defense.  McAfee  v.  Bending,  36  Ind.  App.  628,  76 
N.  E.  412. 

Where  throughout  the  transactions  involving  the  sale  of  de- 
fendant's property  hy  plaintiff,  a  broker,  defendant  believed 
that  she  was  dealing  with  the  purchaser  alone,  to  whom  her 
written  contract  of  sale  was  executed  and  delivered,  the  facts 
that  immediate  assignment  was  made  by  the  purchaser  to  an- 
other, followed  by  the  procurement  from  defendant  of  a  written 
ratification,  with  a  modification  giving  to  the  assignee  the  right 
to  a  conveyance,  and  the  payment  by  such  assignee  of  the  pur- 
chaser's check,  given  in  part  payment  of  the  purchase  price, 
were  circumstances  tending  to  support  her  claim  that  the  con- 
tract was  procured  through  the  misrepresentations  of  all  of  the 
parties  acting  in  concert.  Kurinsky  v.  Lynch,  201  Mass.  28, 
87  N.  E.  70. 


CHAPTER   II. 

SECTION.  SECTION. 

297.  Deposits.  300.     Measure  of  damages. 

298.  Deceit.  301.     Clerks. 

299.  Action  for  damages.  302.     Conduct  of  broker. 

Sec.  297.     Deposits. 

A  real  estate  broker  employed  to  find  a  purchaser  of  land  at  a 
designated  price,  under  an  agreement  whereby  the  owner  is  to 
furnish  a  perfect  abstract  of  title  on  a  deposit  of  ten  per  cent. 
of  the  price  by  the  purchaser  has  earned  his  commissions  when 
he  produces  a  purchaser  willing  to  buy  on  the  prescribed  terms, 
and  where  the  owner  afterwards  induces  his  title  to  be  rejected 
for  the  purpose  of  defeating  the  sale,  the  broker's  return  of  the 
deposit  in  compliance  with  the  contract  of  sale,  though  without 
the  owner's  knowledge,  does  not  affect  his  right  to  his  commis- 
sion. Phelps  V.  Preuesch,  83  Cal.  626,  23  P.  1111.  A  real 
estate  broker  acting  for  a  vendor  is  entitled,  in  the  absence  of 
a  contract  to  the  contrary,  to  a  commission  on  a  deposit  made 
by  the  prospective  purchaser  and  forfeited  by  him.  Pierce  v. 
Powell,  57  111.  323;  Gilder  v.  Davis,  137  N.  Y.  504,  33  N.  E. 
590,  20  L.  R.  A.  398 ;  Bowersox  v.  Hall,  73  Kan.  99,  84  P.  557. 
See  also  Sees.  470,  570. 

Sec.  298.    Deceit. 

Wliere  plaintiff  purchased  property  from  defendant,  a  broker, 
for  $7,000,  upon  his  representation  that  the  owner  would  not 
sell  it  for  less  than  that  price,  when  the  fact  was  that  the  owner 
had  consented  to  sell  it  for  $6,500,  and  the  broker's  commission, 
plaintiff  can  recover  in  an  action  in  deceit,  $500,  less  a  reason- 
able commission  to  defendant.  Kice  v.  Porter,  21  Ky.  L.  R. 
871,  22  Ky.  L.  R.  1704,  53  S.  W.  285,  61  S.  W.  266. 

Defendant  asked  a  real  estate  broker  to  obtain  a  purchaser 
for  his  farm,  which  the  broker  did,  at  the  same  time  demanding 

188 


PRINCIPAL   AND   AGENT.  189 

large  commissions,  which,  he  said,  were  to  be  divided  between 
him  and  the  purchaser's  broker,  as  the  purchaser  knew;  this 
was  satisfactory  to  defendant,  but  he  wrote  as  to  the  commis- 
sion to  the  purchaser,  who  thereupon  refused  to  sign  the  con- 
tract of  sale.  Held,  that  the  broker  did  not  procure  a  pur- 
chaser on  defendant's  terms,  and  was  not  entitled  to  commis- 
sions. Smith  V.  Nicoll,  36  N.  Y.  S.  347,  91  Hun  173,  affirmed 
158  N.  Y.  696,  53  N.  E.  1132. 

Wliere  a  real  estate  broker,  in  order  to  make  a  sale,  repre- 
sented that  an  assessment  for  a  sewer  in  process  of  construc- 
tion near  the  property  had  been  paid,  the  owner  is  not  liable 
therefor  in  an  action  for  deceit,  in  the  absence  of  evidence  that 
he  gave  the  broker  authority  to  make  such  representation,  it 
not  being  within  the  ordinary  scope  of  his  employment.  Brack- 
man  V.  Leighton,  60  Mo.  App.  38. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud  of 
his  agent  in  effecting  a  sale ;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 
repaid  may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue 
the  agent  for  the  deceit.    Kennedy  v.  McKay,  43  N.  J.  L.  288. 

Plaintiff  employed  defendant  as  its  agent  to  buy  a  mine  for 
not  to  exceed  $150,000.  Defendant  aHually  bought  it  for 
$90,000,  concealed  the  fact  from  plaintiff,  fraudulently  caused 
it  to  be  conveyed  to  a  confederate  and  by  representing  that  he 
had  bought  it  for  $150,000,  induced  plaintiff  to  execute  a  con- 
tract with  the  confederate,  agreeing  to  buy  the  mine  at  that 
price,  $20,000  to  be  paid  in  cash,  $90,000  in  one  year,  and 
$40,000  in  eighteen  months;  plaintiff  paid  the  cash  payment, 
and  after  obtaining  a  reduction  of  the  remainder  to  $110,000, 
paid  that  sum  also ;  thus,  by  reason  of  defendant 's  fraud  paying 
^40,000  more  than  the  actual  price  for  which  defendant  pur- 
chased for  his  account.  Held,  that  these  facts  alleged  and  found 
sufficiently  made  out  a  case  of  damages  for  ■  deceit  and  fraud, 
and  entitled  plaintiff  to  a  judgment  recovered  for  $40,000.  Gt. 
Western  Gold  Co.  v.  Chambers  (Cal.  Sup.  '09),  101  P.  6. 

A  broker  employed  by  the  owner  to  procure  a  purchaser  of 
real  estate  was  entitled  to  retain  for  his  services  the  sum  in 
excess  of  $10,000  realized  from  a  sale.  The  broker  fraudulently 
induced  a  purchaser  to  purchase  the  land  for  $12,500,  and 


190  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

fraudulently  induced  the  pureliaser  to  sell  his  own  land  to 
the  broker,  who  agreed  to  pay  $2,527  to  the  owner  to  apply 
on  the  price  of  the  land  purchased  from  the  owner.  Held,  that 
the  purchaser,  electing  to  rescind  the  contract  on  the  ground 
of  fraud,  could  not  recover  the  $2,500  as  an  element  of  damages 
in  an  action  of  deceit  against  the  broker.  Gordon  v.  Rhodes 
(Tex.  Civ.  App.  '09),  117  S.  W.  1023.  Certified  questions  an- 
swered, 116  S.  W.  40. 

Sec.  299.    Action  for  damages. 

Where  a  broker  is  employed  to  purchase  or  to  make  a  sale  of 
lands  and  the  principal  refuses  to  accept  or  to  part  with  the 
property,  as  the  case  may  be,  or  otherwise  breaks  the  contract 
of  employment,  the  broker  may  maintain  an  action  for  a  breach 
of  the  contract.  Atkinson  v.  Peck,  114  N.  C.  597,  19  S.  E.  628; 
Roberts  v.  Barnes,  1  Cab.  &  E.  (Eng.)  336;  Burnet  v.  Edling, 
19  Tex.  Civ.  App.  711,  48  S.  W.  775;  Henry  &  Sons  v.  Colo. 
F.  &  L.  S.  Co.,  164  F.  986. 

Although  as  a  general  rule  a  contract  with  an  agent  to  sell 
land,  within  a  certain  time,  is  revocable  before  the  termination 
of  the  time  specified,  yet  if  the  agent  has  rendered  service  in 
relation  thereto,  he  may  sue  the  principal  for  a  breach  of  the 
contract  and  recover  damages.  Green  v.  Cole,  103  ]\Io.  70,  15 
S.  W.  317;  Durkee  v.  Gunn,  41  Kan.  496,  21  P.  637;  Bathrik 
v.  Coffin,  43  N.  Y.  S.  313,  13  App.  Div.  101 ;  Rowan  v.  Hull,  55 
W.  Va.  335,  47  S.  E.  92;  Tappin  v.  Henley,  11  Weekly  Rep. 
(Eng.)  466.    See  also  Sec.  22. 

Where  a  real  estate  agent  having  a  contract  to  sell  lands  to  a 
third  person  at  an  advanced  price  purchases  the  land  himself 
for  his  principal,  without  disclosing  to  him  that  such  is  the  con- 
tract, which  he  thereafter  completes,  renders  himself  liable  to 
his  principal  in  damages.  Kingsley  v.  Wheeler,  95  ]\Iinn.  360, 
104  N.  W.  543. 

An  owner  of  land,  which  his  agent  has  sold,  can  not  recover 
damages  from  that  agent  for  fraud,  where  such  owner,  knowing 
of  a  resale  by  the  vendee  and  suspecting  his  agent  of  connivance 
in  said  resale  at  an  advanced  price,  refuses,  while  the  contract 
is  still  executory,  to  avail  himself  of  the  usual  means  of  ascer- 
taining the  trutli,  end,  nev.'rtheless,  executes  the  contract.    Ber- 


PRINCIPAL   AND   AGENT.  191 

tleson  V.  Vanderhoff,  96  ]\linn.  184,  104  N.  W.  820.  See  also 
See.  24. 

Where  a  contract  employing  a  broker  to  procure  a  purchaser 
stipulates  that  the  commissions  shall  be  paid  only  when  a  sale 
is  effected,  the  broker  is  not  entitled  to  commissions  unless  a 
sale  is  effected,  though  he  may  be  entitled  to  damages  for  the 
wrongful  act  of  the  owner  in  preventing  a  sale.  McDermott  v. 
Mahoney  (Iowa  Sup.  '08),  115  N.  W.  32,  139  Iowa  292;  affirm- 
ing on  rehearing,  106  N.  W.  925. 

An  action  for  damages  will  lie  against  a  real  estate  agent 
delivering  a  contract  for  the  exchange  of  property  to  the  other 
party,  in  violation  of  the  principal's  instructions.  Hawcs  v. 
Burkholz,  114  N.  Y.  S.  765. 

Where  a  real  estate  broker  is  employed  for  a  definite  period 
to  procure  a  purchaser  for  the  property  of  the  owner,  and  the 
broker  is  discharged  without  cause,  before  the  expiration  of  the 
period,  or  is  not  permitted  to  undertake  the  performance  of 
the  contract,  the  owner  is  liable  to  the  agent  for  the  damages. 
Johnson  v.  Buchanan  (Tex.  Civ.  App.  '09),  116  S.  W.  875.  A 
broker  may  recover  anticipated  profits  as  damages  for  breach  of 
his  contract  of  employment.  Blumenthal  v.  Bridges  (Ark.  Sup, 
'09),  120  S.  W.  974. 

Where  the  buyer  of  real  estate  receives  a  deed  therefor,  with 
special  warranty  against  incumbrances,  and  pays  over  the  pur- 
chase price  to  the  brokers  of  the  seller,  the  buyer  can  recover  on 
such  warranty  from  the  seller,  where  it  develops  that  the 
brokers  thereafter  accounted  to  the  seller  for  the  difference 
between  an  existing  incumbrance  on  the  property  and  the  pur- 
chase price,  but  fraudulently  failed  to  pay  and  secure  a  re- 
lease of  such  incumbrance.    Babson  v.  Cox,  32  App.  D,  C.  542. 

Defendant  employed  plaintiff  to  procure  an  exchange  of 
land  of  defendant's  to  a  third  person.  It  was  orally  agreed 
that  the  third  person  should  pay  plaintiff  his  commission,  and 
the  contract  between  defendant  and  the  third  person  for  the 
exchange  was  also  oral.  Defendant  refused  to  consummate  the 
exchange  and  plaintiff  lost  his  commission.  Held,  that  as  the 
oral  contract  for  the  exchange  of  real  estate,  tliough  unenforce- 
able, under  tlie  statute  of  frauds,  may  be  lawfully  performed, 
the  fact  that  the  third  person  could  not  enforce  th-e  agreement 


192  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

did  not  deprive  plaintiff  of  his  action  for-  damages  against  de- 
fendant for  the  loss  of  his  commissions.  Bird  v.  Blackwell  (Mo. 
App.  '09),  115  S.  W.  487. 

If  the  vendor's  broker  misrepresented  the  acreage,  and  the 
purchaser  relied  on  the  representations,  the  purciiaser  can 
recover  compensation  for  any  material  shortage,  not  exceeding 
the  price  per  acre  paid.  F arris  v.  Gilder  (Tex.  Civ.  App.  '09), 
115  S.  W.  645. 

Sec.  300.    Measure  of  damages. 

A  real  estate  agent  who  undertakes  to  sell  the  realty  of  his 
principal  without  legal  authority  to  bind  such  principal,  does 
not  render  him  responsible  for  any  defect  in  the  title  of  the 
principal.  In  the  absence  of  evidence  of  other  damages  the 
measure  of  the  agent's  liability  to  the  purchaser  in  such  case 
is  the  excess  of  the  market  value  of  the  principal 's  title,  whether 
good  or  bad,  over  the  contract  price.  Gestring  v.  Fisher,  46 
Mo.  App.  603. 

In  an  action  against  an  agent  for  fraudulent  representations 
as  to  the  location  of  real  estate  sold  by  him  to  plaintiff,  after  a 
disaffirmance  of  the  contract,  the  measure  of  damages  is  the 
actual  loss  sustained,  and  not  the  difference  between  the  actual 
value  of  the  property  conveyed  and  the  price.  Roberts  v.  Hol- 
liday,  10  S.  D.  576,  74  N.  W.  1034;  Duncan  v.  Holder  (N.  M. 
'10),  107  P.  685. 

A  contract  authorized  the  plaintiffs  to  sell  a  tract  of  land  of 
seven  thousand  acres,  and  provided  that  the  tract  should  be  sub- 
divided, and  an  asking  price  agreed  on  for  the  smaller  tracts; 
plaintiffs  were  to  have  five  per  cent,  for  lands  sold  at  the 
minimum  price,  and  one-half  of  the  excess  for  those  sold  above 
that  price,  but  no  commissions  on  the  value  of  the  improve- 
ments ;  plaintiff  sold  and  defendant  conveyed  to  the  purchasers 
large  quantities  of  the  land,  but  he  revoked  the  contract  before 
all  the  land  had  been  surveyed  or  the  time  expired.  Held,  that 
it  was  not  contemplated  that  the  land  should  all  be  surveyed 
and  subdivided  before  sales  were  made,  and  the  fact  that  it 
had  not  all  been  surveyed  did  not  authorize  revoking  the  con- 
tract ;  it  appearing  that  plaintiff  would  probably  have  sold  all 
the  lands  within  the  time  limited,  their  damages  should  be  com- 


PRINCIPAL  AND   xiGENT,  193 

puted  at  one-half  the  difference  between  what  the  lands  would 
have  brought  at  the  average  price  of  that  already  sold  and  the 
minimum  price,  excluding  the  two  hundred  acres  with  the  im- 
provements, and  deducting  the  probable  expense  of  selling  and 
the  amount  already  paid  by  defendant.  McLane  v.  Maurier,  28 
Tex.  Civ.  App.  75,  66  S.  W.  693,  1108. 

In  order  to  entitle  the  prospective  purchaser  of  a  lot  to  dam- 
ages from  an  agent  for  his  breach  of  his  contract  of  agency  to 
purchase  the  lot,  the  damages  must  be  such  as  are  the  probable 
and  natural  result  of  the  breach,  and  where  the  defendant  was 
to  purchase  the  lot  for  plaintiff  at  not  to  exceed  a  certain  price, 
and  purchased  it  at  a  less  price,  and  took  the  title  in  his  own 
name  and  refused  to  transfer  it  to  plaintiff,  whose  purpose  in 
buying  the  lot  was  to  erect  a  sanitarium  thereon,  plaintiff  can 
not  recover  as  damages  the  difference  in  the  price  of  material 
and  labor  between  the  date  of  the  contract  and  the  time  of 
the  suit,  time  being  not  of  the  essence  of  the  contract,  and 
plaintiff  having  at  the  time  no  contract  for  the  building  at  a 
fixed  price,  and  there  being  no  allegation  or  proof  that  defend- 
ant knew  that  the  price  of  labor  and  material  was  going  up, 
or  that  plaintiff  was  bound  by  a  contract  to  build,  which  he  was 
to  perform  within  a  certain  time,  those  damages  are,  under  the 
circumstances,  too  remote  and  speculative  to  be  attributed  to 
defendant's  breach  of  the  contract.  Harrison  v.  Craven,  188 
Mo.  590,  87  S.  W.  962. 

In  an  action  for  damages  for  the  revocation  of  authority  to 
sell  land,  nothing  more  than  nominal  damages  can  be  recovered, 
when  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Milligan  v.  Owens,  123  Iowa  285,  98 
N.  W.  792. 

In  the  ease  of  a  breach  by  a  vendor  of  his  contract  to  con- 
vey, the  measure  of  plaintiff's  damages  is  the  amount  which  he 
would  have  received  as  compensation  had  defendant  complied 
with  his  contract.  Atkinson  v.  Peck,  114  N.  C.  597,  19  S.  E. 
628;  Young  v.  Metcalf  Land  Co.  (N.  D.  Sup.  '09),  122  N.  W. 
1101.  Where  an  agent  in  completing  a  contract  for  his  prin- 
cipal for  the  sale  of  her  real  estate,  secures  the  agreed  com- 
pensation, with  the  exception  of  taking  a  different  security  for 
the    deferred   payment   amounting   to   $730   and   interest,   the 


194  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

measure  of  damages  resulting  to  the  principal  from  the  act 
of  the  agent  is  the  difference  in  value  between  the  security  con- 
tracted for  and  that  recovered,  not  exceeding  $730.  Lunn  v. 
Guthrie,  88  N.  W.  1060,  115  Iowa,  501 ;  Hindrick  v.  Bradij  (S. 
D.  Sup.  '09),  121  N.  W.  777. 

For  the  breach  of  a  contract  to  pay  a  real  estate  agent  a 
specified  sum  as  commissions  for  finding  a  purchaser,  the  meas- 
ure of  damages  is  the  commission  agreed  to  be  paid.  Tuffree  v. 
Bindford,  130  Iowa  532,  107  N.  W.  425.  Where  a  broker  em- 
ployed to  sell  land  was  to  receive  as  his  compensation  anything 
that  he  could  obtain  for  the  land  above  a  specified  sum,  in  an 
action  against  the  landowner  for  failure  to  perform  the  contract 
with  the  purchaser  produced  by  plaintiff,  the  measure  of  dam- 
ages was  the  amount  of  the  commissions  earned  and  lost.  Young 
V.  Ruhwedel,  119  Mo.  App.  231,  96  S.  W.  228;  Canfield  v. 
Orange,  13  N.  D.  622,  102  N.  W.  313.  The  measure  of  damages 
for  the  breach  of  a  contract  employing  a  broker  to  sell  land  is 
either  the  compensation  fixed  by  the  contract,  or  a  reasonable 
compensation  for  his  services.  Dal  v.  Fisher  (S.  D.  Supreme 
'06),  107  N.  W.  534;  Hancock  v.  Stacey  (Tex.  Sup.  '10),  125 
S.  W.  884;  Johnson  v.  Buchanan  (Tex.  Civ.  App.  '09),  116 
S.  W.  875. 

The  expenses  incurred  by  the  broker  in  advertising  and  sell- 
ing a  client's  land  are  not  elements  of  damages,  in  an  action 
to  recover  commissions  alleged  to  have  been  lost  by  his  client's 
refusal  to  convey  to  the  purchaser  whom  the  broker  had  ob- 
tained, and  hence  the  admission  of  evidence  of  such  expenses  is 
prejudicial  error.  Burnet  v.  Edling,  19  Tex.  Civ.  App.  711, 
48  S.  W.  775.  In  an  action  by  a  real  estate  broker  for  com- 
missions, it  was  error  to  tell  the  jury,  in  answer  to  questions 
by  their  foreman,  that  they  were  not  bound  by  any  rule  in 
fixing  damages,  as  the  court  should  have  charged  them  that  the 
rule  was  the  customary  commissions  in  such  cases,  or  if  the 
evidence  was  insufficient  on  that  ground,  what  would  be  a  fair 
compensation.  Hartman  v.  Warner,  75  Conn.  197,  52  A.  719. 
Defendant  prior  to  his  purchase  of  certain  land  contracted  to 
pay  plaintiff,  who  negotiated  the  purchase,  one-third  of  the 
profits  to  be  derived  from  a  subsequent  sale  thereof,  no  time 
for  the   sale   was   fixed,   and   defendant   having   died   without 


PRINCIPAL   AND   AGENT.  195 

making  a  sale,  his  personal  representative  repudiated  the  plain- 
tiff's interest  and  refused  to  sell,  though  the  property  had 
largely  increased  in  value.  Held,  that  decedent  under  the  con- 
tract was  required  to  make  a  sale  within  a  reasonable  time,  and 
after  repudiation  of  plaintiff's  rights,  he  was  entitled  to  recover 
one-third  of  the  value  of  the  land  in  cash,  after  deducting  the 
purchase  price,  taxes  and  interest.  Kaufman  v.  Bailie,  46 
Wash.  248,  89  P.  548. 

Where  a  broker  employed  by  the  owners  of  land  to  effect  a 
sale  thereof,  pretending  to  act  for  the  principal,  made  a  con- 
tract to  sell  the  land  to  plaintiff's  assignor,  which  was  not  bind- 
ing on  the  owners,  and  plaintiff's  assignor  paid  $200  on  the 
contract,  plaintiff  can  recover,  in  an  action  for  damages  on  the 
broker's  warranty  of  authority  as  agent  to  sell.  Rowland  v. 
Hall,  106  N.  Y.  S.  55,  121  App.  Div.  459. 

Where,  in  an  action  for  a  division  of  a  broker's  commissions 
defendant  agreed  to  pay  plaintiff  one-half  of  the  commissions 
earned  on  the  sale,  and  defendant  admitted  receiving  $287.50, 
it  was  proper  for  the  court  to  assess  the  plaintiff's  damages  at 
one-half  of  such  sum.  McCleary  v.  Willis,  35  Wash.  676,  77 
P.  1073. 

Where,  in  an  action  by  a  broker  for  his  share  of  the  profits 
derived  from  a  sale  procured  by  him  of  a  mine  under  an  agree- 
ment to  divide  "in  such  proportion  as  would  be  just  and  right;" 
the  evidence  was  in  irreconcilable  conflict  as  to  the  customary 
division,  many  witnesses  testifying  that  the  usual  division  was 
fifty  per  cent.,  while  others  testified  that  the  customary  division 
varied  from  two  and  one-half  to  ten  per  cent,  of  the  net  profits, 
a  decree  allowing  ten  per  cent,  was  proper.  Law  v.  Seeley,  37 
Wash.  166,  79  P.  606. 

Where  a  broker  was  employed  to  sell  certain  land  for  $75,000, 
at  a  commission  of  $2,000,  and  after  he  had  interested  a  pur- 
chaser his  authority  was  revoked  and  the  land  was  sold  by  his 
employer  for  $65,000,  plaintiff  was  entitled  to  recover  only  his 
contract  commissions,  with  interest  thereon,  and  not  the  custom- 
ary commissions  or  reasonable  value  of  his  services.  McGovern 
V.  Bennett,  146  ^lich.  558,  109  N.  W.  1055,  13  D.  L.  N.  853; 
Finck  V.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554. 

Where  a  real  estate  agent  delivered  a  contract  for  the  ex- 


196  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

change  of  property  to  the  other  party,  in  violation  of  his  prin- 
cipal's instructions,  the  damage  sustained  by  the  principal  in 
consequence  of  his  refusal  to  perform  the  contract,  and  the 
expense  of  defending  a  suit  by  the  other  party's  assignee  for 
breach  of  the  contract,  and  of  a  suit  by  the  agent  for  commis- 
sions, are  proper  elements  of  recovery.  Hawes  v.  Burkholz,  114 
N.  Y.  S.  765. 

Wliere  a  principal  makes  sales  of  land  within  the  time  for 
which  he  had  listed  it  with  a  broker,  the  measure  of  the  broker's 
recovery  is  the  profit  he  would  have  realized  if  he  had  been 
permitted  to  perform.  Blumenthal  v.  Bridges  (Ark.  Sup.  '09), 
120  S.  W.  974.  Contra,  Milligan  v.  Owens,  123  Iowa,  285,  98 
N.  W.  792. 

In  an  action  by  a  broker  for  compensation  for  procuring  a 
purchaser  before  his  authority  to  sell  was  wrongfully  revoked, 
where  the  jury,  on  sufficient  evidence,  awarded  the  same  amount 
that  the  parties  had  agreed  on  in  case  of  sale,  it  is  immaterial 
whether  tlie  contract  price  or  the  value  of  the  services  ren- 
dered should  have  been  applied  in  ascertaining  the  damages. 
Hancock  v.  Stacy  (Tex.  Sup.  '10),  125  S.  W.  884. 

Where  a  broker  sued  on  his  contract  for  commissions,  his  dam- 
ages were  limited  to  those  he  sustained  by  breach  of  the  con- 
tract, and  he  was  not  entitled  to  any  part  of  the  profits  made 
by  defendants  on  a  subsequent  sale  of  the  land.  Montgomery 
v.  Amsler  (Tex.  C.  A.  '09),  122  S.  W.  307. 

Sec.  301.     Clerks. 

A  contract  whereby  for  a  consideration  moving  from  a  third 
person,  a  clerk  agrees  to  induce  his  employer  to  accept  a  lower 
price  for  property  about  to  be  sold  than  was  first  asked,  can 
not  be  enforced,  in  the  absence  of  a  showing  that  the  em- 
ployer knew  that  his  clerk  was  serving  the  interests  of  the 
purchaser,  such  a  contract  being  against  good  morals.  Summers 
V.  Gary,  74  N.  Y.  S.  980,  69  App.  Div.  428. 

Where  the  clerk  of  a  broker  employed  to  make  a  sale  of  land, 
who  has  access  to  the  correspondence  between  his  principal  and 
the  vendor,  purchases  the  land  himself,  though  the  price  paid 
be  fair,  and  there  is  no  actual  fraud,  he  will  be  compelled  at 
the  suit  of  the  vendor  to  reconvey  such  portion  of  the  land  as 


PRINCIPAL   AND   AGENT.  197 

remains  in  his  hands,  and  to  account  for  the  proceeds  of  what 
he  has  sold.     Gardner  v.  Ogden,  22  N.  Y.  327. 

Sec.  302.     Conduct  of  broker. 

In  an  action  to  recover  commissions  for  finding  a  purchaser 
it  appeared  that  the  contract  provided  that  the  terms  of  pay- 
ment should  be  $10,000  within  five  days,  $5,000  additional  on 
promises,  etc.,  that  at  eight  o'clock  in  the  morning  of  the  last 
day  for  making  a  sale,  as  provided  by  the  contract,  plaintiffs 
and  one  B.  met  defendants,  and  B.  offered  himself  as  a  pur- 
chaser and  tendered  a  check  for  $10,000  as  the  first  payment; 
that  the  check  was  declined  by  defendant  as  not  equivalent 
to  money,  whereupon  they  were  informed  that  the  money  would 
be  produced  on  the  opening  of  the  bank;  that  defendants  said 
they  would  allow  until  10  o'clock,  and  plaintiffs  and  B.  endeav- 
ored to  tender  payment  to  defendant,  but  were  eluded  all  day 
by  the  latter,  and  at  10  o'clock  defendant  sold  the  land  to 
another  person;  B.  had  made  no  written  contract  for  the  pur- 
chase of  the  land.  Held,  that  defendants  were  liable.  Oullahan 
V.  Baldwin,  100  Cal.  648,  35  P.  310. 


CHAPTER   III. 


SECTION.  SECTION. 

303.  Debt  of  another.  307c.  Broker  not  entitled  to  com- 

304.  Discretion.  missions   when    lots   were 

305.  Double  liability.  sold  out  of  order. 

306.  Double  capacity.  308.     Exoneration. 

307.  Contract  in  excess  of  author-  300.     Expenses. 

ity  vested  in  agent.  310.     Employment  of  engineer. 

307a.  Contract   of   broker   varying  311.     Fiduciary  relations. 

from  instruction  will  not  312.     Failure  of  broker  to  report 
be  enforced.                          '  offer. 

307b.  An  agent  who  enters  into  a  313.     False  representations. 
contract   without   author- 
ity or  who  exceeds  same, 
binds  himself. 


Sec.  303.    Debt  of  another. 

Plaintiff,  as  broker,  sold  property  of  S.  to  C,  and  defendant 
was  employed  to  draw  a  contract  of  sale,  but  on  finding  that 
S.  had  failed,  defendant  postponed  drawing  the  contract,  and 
later,  though  without  title,  he  contracted  with  C.  to  sell  him  the 
property,  and  received  from  C.  part  of  the  price  which  he 
handed  to  S.,  whereupon  title  was  transferred  to  him,  and  he 
made  a  conveyance  to  C. ;  defendant  at  no  time  had  any  per- 
sonal interest  in  the  property,  and  acted  solely  as  the  agent  of 
C.  for  the  purpose  of  transfer,  and  did  not  employ  plaintiffs, 
nor  agree  to  pay  them  a  commission;  but  before  the  title  vested 
in  defendant  he  told  one  of  the  plaintiffs  that  "the  matter 
would  go  through,"  that  he  was  the  owner  of  the  property,  and 
would  make  the  contract  himself,  and  if  plaintiffs  were  anxious 
he  would  then  pay  half  of  the  commissions  in  lieu  of  the  whole 
when  the  contract  was  closed.  Held,  that  the  promise  to  pay 
plaintiff  was  either  a  parol  promise  to  pay  another's  debt,  or 
an  original  promise,  without  consideration,  and  therefore  void. 
Smythe  v.  Mack,  19  N.  Y.  S.  347,  64  Hun,  639. 
198 


PRINCIPAL   AND   AGENT.  199 

Sec.  304.    Discretion. 

A  power  to  sell  "the  one-half"  of  a  lot  of  land,  without 
specifying  which,  or  whether  an  undivided  one-half,  empowers 
the  attorney  to  sell  one-half  in  severalty,  and  to  exercise  his 
own  discretion  as  to  which  half.  Alemany  v.  Daly,  36  Cal.  90. 
Where  the  plaintiff  alleged  an  agreement  whereby  he  was  to 
sell  certain  land  for  enough  cash  to  confirm  the  sale,  meaning 
thereby  enough  to  make  tlie  land  good  for  the  deferred  pay- 
ment, and  the  l)alance  to  remain  on  time,  it  is  not  error  to  over- 
rule the  defendant's  objection  that  it  is  not  a  matter  of  law 
how  much  cash  confirms  a  sale,  for  such  a  power  carries  with 
it  some  discretion.  Taylor  v.  Cox  (Tex.  Sup.  1887),  7  S.  W. 
69;  Smith  v.  Keller,  151  111.  518.  38  N.  E.  250;  Boiirke  v.  Van 
Keuren,  20  Colo.  95,  36  P.  882. 

Sec.  305.    Double  liability. 

Where  a  purchaser  is  produced  and  a  sale  consummated  by 
one  of  two  brokers  who  have  the  property  for  sale,  and  a  com- 
mission paid  him  by  tlie  owner,  the  fact  that  the  other  broker 
has,  by  advertising,  found  a  customer,  and  by  interviews  induced 
him  to  make  the  purchase,  will  not  make  the  owner  liable  to 
him  also.  Daniels  v.  Columbia  Heights  Ld.  Co.,  9  App.  Cas. 
(D.  C.)  483;  Wiuans  v.  Jacques,  10  Daly  (N.  Y.)  487. 

An  instruction  that  an  employer  of  two  or  more  real  estate 
brokers  may  make  a  sale  to  a  buyer  produced  by  either,  and  is 
not  bound  to  decide  which  is  the  primary  cause  of  the  pur- 
chase, is  properly  refused  when  the  evidence  shows  that  the 
employer  of  two  brokers,  sued  by  one  of  them,  had  full  notice 
that  he  was  the  procuring  cause  of  the  sale.  Eggleston  v. 
Austin,  27  Kan.  245.  The  court  properly  charged  that,  as  there 
are  different  kinds  of  sales  of  land,  and  such  contract  does 
not  specify  the  kind,  it  is  for  the  jury  to  determine  from  the 
evidence  and  the  letters  forming  the  contract,  and  the  attend- 
ing circumstances,  as  to  whether  it  included  only  the  auction 
sales,  or  both  auction  and  private  sales,  for  which  plaintiff  was 
to  receive  a  commission.  Coolican  v.  Mil.  &  8.  St.  31.  Im.  Co. 
79  Wis.  471,  48  N.  W.  717. 

Defendant,  living  in  New  York,  placed  a  farm  in  the  hands 
of  plaintiff  and  S.,  two  different  real  estate  agents  in  Winnipeg 


200  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

for  sale.  Plaintiff  found  a  purchaser  at  $12  per  acre  in  cash, 
and  informed  defendant  by  letter.  Defendant  replied,  accept- 
ing the  offer,  and  asking  plaintiff  to  call  on  S.  and  arrange 
regarding  commissions,  so  as  to  avoid  having  to  pay  more  than 
one  commission.  Plaintiff  did  not  communicate  with  S.,  but 
introduced  his  purchaser  to  defendant's  solicitor  in  Winnipeg. 
This  purchaser  paid  the  solicitor  $500  on  account,  and  was 
ready  and  willing  to  pay  the  balance,  on  receipt  of  the  transfer. 
Meantime  S.  also  made  a  sale  of  the  farm  at  the  same  price. 
This  latter  sale  was  carried  through  by  defendant,  who  paid 
S.  the  usual  commission.  Held,  that  the  plaintiff  was  entitled 
to  his  commission,  as  he  had  done  all  that  was  necessary  to 
earn  it.     Bell  v.  Rokehy,  15  Manitoba,  327. 

Sec.  306.    Double  capacity. 

The  law  will  not  permit  a  man  to  act  in  the  double  capacity 
of  principal  and  agent.  Dwight  v.  Blackmar,  2  Mich.  330. 
Where  the  owner  of  land  agreed  to  sell  it  to  real  estate  brokers, 
who  at  first  stated  that  they  were  acting  for  themselves,  but 
afterwards,  before  the  contract  was  made,  stated  that  they  were 
acting  as  brokers,  and  the  contract  was  made  to  a  third  person, 
proof  of  their  employment  before  the  making  of  the  contract 
was  not  essential  to  their  right  to  commissions.  Shapiro  v. 
Shapiro,  103  N.  Y.  S.  305,  117  App.  Div.  817. 

Sec.  307.     Contract  in  excess  of  authority  vested  in  agent. 

Wliere  defendant  authorized  his  agent  to  sell  his  farm  for 
a  certain  sum,  the  first  payment  to  be  made  on  February  1st, 
a  contract  requiring  the  first  payment  to  be  made  on  IMarch  1st, 
and  obligating  defendant  to  furnish  an  abstract  of  title,  to 
pay  taxes,  payable  after  the  purchaser  was  to  take  possession, 
and  to  credit  on  the  price  any  insurance  he  might  receive  in 
consequence  of  the  building  on  the  land  burning,  was  in  excess 
of  the  agent's  authority,  and  not  binding  on  defendant.  Strong 
V.  Ross,  33  Ind.  App.  586,  71  N.  E.  819 ;  Staten  v.  Hammer,  121 
Iowa  499;  96  N.  W.  964;  Fleming  v.  Burke,  122  Iowa,  433,  98 
N.  W.  288;  Planer  v.  Eqiiitahle  L.  A.  Soc.  (N.  J.  Ch.  '97),  37 
A.  668;  John  Gund  Brewing  Co.  v.  Tourtelott  (Minn.  Sup.  '09), 
121  N.  W.  417:  Larson  v.  Newman  fN.  D.  Sup.  '09),  121  N.  W. 


PRINCIPAL   AND   AGENT.  201 

202 ;  Turner  v.  BaJcer,  225  Pa.  259,  74  A.  172 ;  Deming  Inv.  Co. 
V.  Coolidge  (Colo.  Sup.  '09),  104  P.  392;  Kaiid  v.  Conkrite,  64 
111.  App.  208;  Sattler  v.  Oliver,  138  111.  200,  affirmed  233  111. 
536,  84  N.  E.  652.  See  Sees.  310,  324,  330,  337,  337b,  339,  340, 
342,  343,  354,  355,  363,  364,  372,  373,  381,  386,  427,  547,  548, 
549,  597. 

Sec.  307a.     Contract  of  broker  varjring  f|fom  instructions  will 
not  be  enforced. 

Wliere  a  broker  to  sell  has  power  to  sign  a  contract,  if  the 
contract  signed  by  him  varies  from  his  instructions,  the  prin- 
cipal will  not  be  bound  by  it,  and  it  will  not  be  specifically  en- 
forced against  the  latter.  Morris  v.  Buddy,  20  N.  J.  Eq.  236. 
See  also  reference  under  Sec.  307. 

Sec.  307b.    An  agent  who  makes  a  contract  either  without 
authority  or  in  excess  of  authority  given,  binds  himself. 

An  agent  who  makes  a  contract  either  without  authority  or 
or  in  excess  of  authority,  binds  himself.  Moore  v.  Wilson,  26 
Foster  (N.  H.)  332;  Meech  v.  Smith,  7  Wend.  (N.  Y.)  315; 
Roberts  v.  Button,  14  Ver.  195;  Royce  v.  Allen,  28  Ver.  234; 
Bank  of  Hamburg  v.  Way,  4  Strobh.  (S.  C.)  87;  Layny  v. 
Stewart,  1  W.  &  S.  (Pa.)  222;  Feeter  v.  Heath,  11  Wend.  (N. 
Y.)  478. 

Sec.  307c.  Broker  not  entitled  to  commissions  where  lots  were 
sold  out  of  the  order  provided  for. 
Persons  employed  to  sell  certain  lots  of  land  at  prices  named 
in  a  written  contract  of  employment,  the  lots  to  be  sold  onl> 
in  the  order  enumerated  in  the  contract,  were  not  entitled  to 
commissions  for  procuring  a  purchaser  of  lots  not  in  their 
order,  though  the  owner's  refusal  was  not  based  on  that  ground. 
Stearns  v.  Jennings,  128  Wis.  379,  107  N.  W.  327.  See  also 
Sec.  340. 

Sec.  308.    Exoneration. 

A  broker,  through  negligence,  loaned  on  second  mortgage 
some  money  which,  for  compensation,  he  had  undertaken  to 
loan  on  first  mortgage  security,  but  before  the  loan  became  due 


202  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

the  lender,  with  other  creditors  of  the  borrower,  signed  a  com- 
position releasing  hiin  from  personal  liability  beyond  the  lien 
of  the  mortgage.  Held,  that  this  released  the  broker  from  his 
contingent  liability  to  the  lender.     Nicolai  v.  Lyo7i,  8  Ore.  56. 

Sec.  309.    Expenses. 

A  real  estate  agent  who  is  merely  promised  a  commission  for 
making  a  sale,  is  not  also  entitled  to  recover  for  expenses  in- 
curred in  procuring  a  pui'chaser.  Reynolds-McGuinness  Co.  v. 
Green,  78  Vt.  28,  61  A.  556.    See  also  Sec.  561. 

Where  a  real  estate  broker  fraudulently  induced  his  prin- 
cipal to  trade  property  on  a  valuation  of  $4,400,  and  sold  it  for 
$5,750,  in  an  action  by  the  principal  against  the  broker  for  the 
difference,  the  latter  could  not' recoup  the  amount  of  expenses 
incurred  in  making  the  sale,  nor  a  portion  of  the  profit  paid 
to  one  who  was  associated  with  him  in  the  fraud.  Van  Raulte 
V.  Epstein,  202  Mo.  173,  99  S.  W.  107^. 

A  real  estate  agent,  having  property  of  others  for  sale,  who 
requests  a  prospective  buyer  to  go  with  him  to  see  the  prop- 
erty, can  not  charge  the  latter  for  his  services  and  expenses  in 
making  such  trip.  Hale  v.  Knapp,  134  Mich.  622,  96  N.  W. 
1060. 

Where  plaintiff  was  to  have  the  proceeds  of  sale  after  pay- 
ment of  the  debts  and  the  agreed  broker's  commissions,  charges 
for  traveling  expenses  and  a  sub-agent's  fees  in  making  the  sale 
would  be  included  in  the  commission.  Lyttle  v.  Goldberg,  131 
Wis.  613,  111  N.  W.  718. 

Sec.  310.    Employment  of  engineer. 

It  is  not  within  the  scope  of  the  authority  of  persons  em- 
ployed to  collect  the  rents  of  a  building  to  employ  an  engineer 
to  take  charge  of  the  engine  therein;  a  general  agent  having 
charge  of  this  matter,  and  of  the  building  generally,  can  not 
delegate  his  authority  to  others.  Crazier  v.  Reins,  4  111.  App. 
564.     See  reference  under  Sec.  307. 

Sec.  311.     Fiduciary  relations. 

One  who  undertakes  to  collect  rents  and  exercise  control  over 
property  occupies  a  fiduciary  relation   which   forbids  placing 


PfMNClPAL   AND   AGENT.  203 

himself  in  antagonism  to  Iiis  principal  with  respect  to  such 
property.     Grumley  v.  Webh,  44  ]\lo.  444. 

In  ejectment  defendant  claimed  an  equitable  title;  plaintiff's 
testator  A.,  formerly  owned  the  land  and  placed  it  with  F.  to 
sell,  who  entrusted  it,  with  A.'s  consent,  to  defendant;  in  a 
short  time  defendant  wrote  to  F.  that  he  had  an  offer,  and 
enclosed  a  deed  for  A.  to  sign,  with  the  name  of  the  grantee 
omitted;  on  return  of  the  deed  signed  and  acknowledged,  de- 
fendant inserted  his  own  name  as  grantee  and  forwarded  a 
cheek  to  F.  for  the  price,  who  cashed  the  check  and  credited 
A.  's  account ;  the  deed  was  void  because  of  the  failure  to  insert 
the  grantee's  name  before  delivery.  Held,  that  on  account  of 
the  defendant's  fiduciary  relations  to  A.  he  took  no  equitable 
title.  Burke  v.  Bours,  92  Cal.  108,  67  Cal.  447,  28  P.  57,  8 
P.  49. 

The  relations  between  an  agent  for  the  sale  of  land  and  his 
principal  are  of  a  fiduciary  nature,  and  the  agent's  acts  in  the 
course  of  his  employment  are  governed  by  the  same  rules  as 
those  of  a  trustee.    Butler  v.  Agnew  (Cal.  App.  '08),  99  P.  395. 

The  owner  of  certain  mineral  land  authorized  plaintiffs  to 
sell  the  same  for  $2,000,  they  to  receive  for  their  services  all 
over  that  amount  they  obtained.  F.  contracted  with  the  plain- 
tiffs to  make  the  sale  and  receive  half  of  the  profits.  F.  there- 
after formed  a  corporation  to  buy  the  land,  representing  that 
the  price  to  be  paid  the  owner  was  $5,000,  and  that  he  was  to 
receive  ten  per  cent,  thereof  for  making  a  sale.  A  sale  was 
made,  $3,000  being  paid  in  cash,  of  which  plaintiffs  recovered 
$500,  and  a  note  for  $2,000  bein^  given  by  the  corporation  to 
the  owner  of  the  land  for  the  balance.  Held,  that  F.  sustained 
a  fiduciary  relation  to  the  corporation,  and  it  was  entitled  to 
the  land  for  the  price  actually  paid  to  the  owner,  and  hence 
plaintiffs  were  not  entitled  to  recover  any  part  of  the  amount 
agreed  to  be  paid  by  the  note.  Tagarden  Bros.  v.  Big  Star 
Zink  Co.,  71  Ark.,  277,  72  S.  W   989. 

Sec.  312.    Failure  of  broker  to  report  offer. 

"Where  a  broker  who  received  a  proposition  to  sell  defendant's 
land  did  not  accept  it  until  after  the  expiration  of  the  time 
designated  in  the  offer  for  its  acceptance,  he  is  not  entitled  to 


204;  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

commissions  on  the  making  of  the  sale.     Short  v.  Willing,  1 
Weekly  Notes  of  Cas.  (Pa.)  460.     See  also  Sees.  235,  431,  471. 

Sec.  313.     False  representations. 

Where  defendant  authorized  plaintiff  to  sell  real  estate, 
agreeing  to  pay  a  commission,  and  in  a  printed  form  above  the 
authorization  set  out  particulars  of  the  property,  the  selling 
price  as  $52,000  and  the  annual  rental  as  $5,325,  and  plaintiff 
procured  a  purchaser  ready,  able  and  willing  to  buy  on  de- 
fendant's terms,  the  price  being  reduced  to  $49,500,  and  the 
customer  M'as  accepted,  and  the  sale  fell  through  only  because 
defendant  had  misrepresented  the  amount  of  annual  rental, 
plaintiff  was  entitled  to  commissions.  Goodman  v.  Hess,  107 
N.  Y.  S.  112,  56  Misc.  482.  Contm,  Crockett  v.  Grayson,  .98 
Va.  354,  36  S.  E.  447.    Compare  Sec.  183. 

A  real  estate  broker  employed  to  procure  a  purchase  of  prem- 
ises for  $8,000  in  cash  and  assumption  of  two  mortgages,  one 
having  two  years  to  run  and  the  other  payable  in  install- 
ments extending  over  a  period  of  seven  years,  procured  a 
purchaser  who  agreed  with  the  owner  for  the  purchase  of 
the  premises  and  to  pay  $7,900  in  cash  and  to  assume  the 
mortgages  as  described;  the  mortgages  matured  a  year  earlier 
than  had  been  represented  by  the  owner;  the  purchaser  in- 
sisted on  a  formal  contract  embodying  the  terms  accordingly, 
and  the  o\\Tier  refused  to  execute  such  a  contract;  the  pur- 
chaser was  able  to  complete  the  purchase.  Held,  that  the 
broker'  was  entitled  to  his  commissions.  Frank  v.  Connor,  107 
N.  Y.  S.  132. 

Where  a  broker,  knowing  of  the  existence  of  an  incumbrance 
and  contrary  to  his  instructions  executes  an  agreement  for 
a  sale  free  from  incumbrances,  and  deceives  his  principal  as 
to  its  contents,  he  can  not  recover  commissions.  Cnlp  v.  Pow- 
ell, 68  Mo.  App.  238.     See  also  Sec.  183. 

If  an  agent  effects  a  sale  of  the  land  of  his  principal  by 
false  representations,  or  other  fraud,  without  the  authority 
or  knowledge  of  the  principal,  the  latter  is  chargeable  with 
such  fraud  in  the  same  manner  as  if  he  had  known  or  au- 
thorized it.     Law  V.  Grant,  37  Wis.  548;  F arris  v.  Gilder  (T. 


PRINCIPAL   AND   AGENT.  205 

C.  A.   '09),  115  S.  W.  645;  Stelting  v.  Bank  of  Sparta,  117 
N.  W.  798,  136  Wis.  369. 

Where  a  contract  for  the  purchase  of  land  accorded  to  the 
purchaser  the  right  to  "back  out"  on  paying  a  forfeiture,  the 
vendor  can  not  recover  damages  from  the  agents  on  account 
of  their  having,  by  false  representations,  induced  the  pur- 
chaser to  forfeit  the  contract.  Heeler  v.  Morrell,  82  Iowa, 
562,  48  N.  W.  938. 


CHAPTER  IV. 
FRAUD. 

SECTION.  SECTION. 

314.  Fraud   of   broker  against  his    318.     Fraud      of       third      persons 

principal.  against  broker. 

315.  Fraud  of  broker  against  third    319.     Fraud  of   principals  inter  se. 

persons.  320.     Debatable   acts  of   broker  not 

316.  Fraud  of  sub-agent.  constituting  fraud. 

317.  Fraud     of     principal    against    321.     Points  of  practice  in   actions 

broker.  •  for  fraud. 

Sec.  314.    Fraud  of  broker  against  his  principal. 

If  a  broker  is  guilty  of  fraud  in  executing  his  agency  his 
right  to  commissions  is  forfeited.  Jeffries  v.  Rohhins,  66  Kan. 
427,  71  P.  852;  Kurinsky  v.  Lynch  (Mass.  Sup.  '09),  87  N.  E. 
70;  Krhut  V.  Phares,  80  Kan.  515,  103  P.  117;  Whaples  v. 
Fahy,  87  N.  Y.  App.  Div.  518,  84  N.  Y.  S.  793;  De  Armet  v. 
Mihier,  20  Pa.  Super.  Ct.  369;  Hall  v.  Gambrill,  92  Fed.  32, 
34  C.  C.  A.  190;  Schleifanhaiim  v.  Rundhaken,  81  Conn.  623, 
71  A.  899. 

In  one  case  it  was  held  that  a  broker  employed  to  find  a 
buyer  is  guilty  of  fraud  when  he  seeks  to  induce  the  prin- 
cipal to  reduce  the  price.  Hobart  v.  Shelhurne,  66  Minn.  171, 
68  N.  W.  841.  Contra,  Gorman  v.  Hayes,  6  Okla.  360,  50  P. 
92.  See  also  Sees.  290,  291,  1046a.  A  broker  may  be  de- 
prived of  his  right  to  commissions  by  the  fraudulent  conduct 
or  misrepresentations  of  third  persons  in  privity  with  him. 
Thwing  v.  Clifford,  136  ]\Iass.  482.  If  a  broker  conceals  the 
purchaser's  name  and  puts  forward  a  fictitious  purchaser,  it 
constitutes  a  fraud  in  law,  and  deprives  him  of  his  right  to 
commissions  for  procuring  a  buyer.  Pratt  v.  Patterson,  12 
Phila.    (Pa.)   460,  112  Pa.  St.  475. 

A  broker  who  acts  secretly  for  both  parties  to  an  exchange, 
purchase,  sale  or  lease  of  property  is  guilty  of  fraud  which 

206 


PRINCIPAL   AND   AGENT.  207 

deprives  him  of  the  right  to  recover  commissions  from  either 
party.  Tigarder  v.  Big  Stone  Zinc  Co.,  71  Ark.  277,  72  S.  W. 
789;  Deutsch  v.  Baxter,  9  Colo.  App.  58,  47  P.  405;  Hanesley 
V.  Monroe,  103  Ga.  279,  29  S.  E.  928;  Van  Vltssingen  v.  Blum, 
92  111.  App.  145;  Hampton  v.  Lackens,  72  111.  App.  442;  Boyd 
V.  Dillingham,  33  111.  App.  266 ;  Simonds  v.  Hoover,  35  Ind. 
412;  Blake  v.  Stump,  73  Md.  160,  20  A.  788,  10  L.  R.  A.  103; 
Bice  V.  Wood,  113  Mass.  133;  Walker  v.  Osgood,  98  Mass. 
348;  Farnsivorth  v.  Hemmer,  1  Allen  (Mass.),  494;  Rosenthal 
V.  Drake,  82  Mo.  App.  358;  Chapman  v.  Ctirrie,  51  Mo.  App. 
40;  Strowhridge  v.  Sivan,  43  Neb.  281,  62  N.  W.  199;  Camp- 
bell V.  Baxter,  41  Neb.  729,  60  N.  W.  90;  Robinson  v.  Clock, 
55  N.  Y.  S.  976,  38  App.  Div.  67;  Southack  v.  Lane,  65  N.  Y. 
S.  629,  32  Misc.  141;  Perkins  v.  Brainerd  Quarry  Co.,  32  N. 
Y.  S.  230,  11  Misc.  328;  Piatt  v.  Baldwin,  2  N.  Y.  City  Ct. 
281;  Capener  v.  Hogan,  40  0.  St.  203;  Hann  v.  Bretler,  107 
N.  Y.  S.  78;  Bell  v.  McConnell,  37  0.  St.  396;  Connell  v. 
^mtY/i,  142  Pa.  St.  25,  21  A.  793,  12  L.  R.  A.  395;  Lynch  v. 
Faller,  11  R.  I.  311;  Armstrong  v.  O'Brien,  83  Tex.  635,  19 
S.  W.  268 ;  Shepard  v.  Hill,  6  Wash.  605,  34  P.  159 ;  Meyer  v. 
Hanchett,  39  Wis.  419;  Bellin  v.  Weiw,  104  N.  Y.  S.  360. 
Mechem  on  Ag.  Sees.  37,  38. 

Unless  the  principals  knew  of  the  duplicate  agency  and  con- 
sented thereto  or  acquiesced  therein.  Hanesley  v.  Monroe,  103 
Ga.  279,  29  S.  E.  928;  Boyd  v.  Dillingham,  33  111.  App.  266; 
Gann  v.  Zetler,  3  Ga.  App.  589,  60  S.  E.  283 ;  Rice  v.  Wood, 
113  Miss  133;  Walker  v.  Osgood,  98  Mass.  348;  Farnsivorth 
V.  Hemmer,  1  Allen  (Mass.),  494;  Redmund  Bros.  v.  Hooks, 
137  Iowa,  228,  114  N.  W.  885;  Rosenthal  v.  Drake,  82  Mo. 
App.  358 ;  Chapman  v.  Currie,  51  Mo.  App.  40 ;  Strowbridge 
V.  Swan,  43  Neb.  781,  62  N.  W.  199;  Dennison  v.  Gault,  132 
Mo.  App.  301,  111  S.  W.  844;  Campbell  y.  Baxter,  41  Neb. 
729,  60  N.  W.  90;  Lansing  v.  Bliss,  33  N.  Y.  S.  310,  86  Hun, 
205 ;  Bonwell  v.  Auld,  27  N.  Y.  S.  936,  affirmed  29  N.  Y.  S. 
15,  9  Misc.  65;  Bonwell  v.  Howes,  1  N.  Y.  S.  435;  Bellin  v. 
Wein,  104  N.  Y.  S.  360;  Piatt  v.  Baldwin,  2  N.  Y.  City  Ct. 
281;  Willner  v.  Scale,  111  N.  Y.  S.  699,  127  A.  D.  180;  Ca- 
pener V.  Hogan,  40  0.  St.  203;  BeU  v.  McConnell,  37  0.  St. 
396;  Evans  v.   Rockett,  32   Pa.   Super.    Ct.    365;    Connell  v. 


208  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Smith,  142  Pa.  St.  25,  21  A.  793,  12  L.  R.  A.  395;  Sullivan 
V.  Tufts  (Mass.  Sup.  '09),  89  N.  E.  239;  Lyiich  v.  Faller,  11 
E.  I.  311;  Meyer  v.  Ilanchett,  39  Wis.  419;  >Sc?evar  v.  Zs^e 
Harbor  Ld.  Co.,  91  ]\Iinn.  451,  98  N.  W.  344 ;  LaUn  v.  Nordyhe, 
66  Iowa,  471 ;  ^erZ  Cypress  Lumber  Co.  v.  Perr?/.  118  Ga.  8^76, 
45  S.  E.  674;  Berry  v.  Schmidt,  57  N.  W.  172;  Zimmerman  v. 
Garvey,  81  Conn.  570,  71  A.  780;  Arthur  v.  Porter  (Tex. 
Civ.  App.  '09),  116  S.  W.  127;  Grasinger  v.  Lucas  (S.  D. 
Sup.  '09),  123  N.  W.  77;  Lipscomb  v.  Mastin  (Mo.  App.  '10), 
125  S.  W.  1177. 

If  a  broker  has  an  individual  interest  in  the  transaction  he 
is  employed  to  negotiate,  and  fails  to  disclose  the  fact  to  the 
principal,  this  constitutes  a  fraud  which  deprives  him  of  the 
right  to  compensation  for  his  services.  CoHins  v.  McClurg, 
1  Colo.  App.  348,  29  P.  299 ;  Jeffries  v.  Bobbins,  66  Kan.  427, 
71  P.  852;  BucTc  v.  Hozeboom  (Neb.  Sup.  '02),  90  N.  W. 
635;  Ryan  v.  Kahhr  (Tex.  Civ.  App.  '98),  46  S.  W.  71;  DeL'- 
Archerie  v.  Rutherford  (Wash.  '09) ,  102  P.  1033.  If  a  broker 
in  negotiating  a  contract  practices  fraud  on  the  owner,  and 
the  other  party  is  privy  thereto,  or  has  knowledge  thereof,  the 
owner  is  not  bound  thereby,  and  it  was  not  necessary  in  a 
suit  to  recover  the  lands  that  the  owner  should  offer  to  restore 
what  he  had  received  before  he  could  demand  restitution. 
Eealey  v.  Martin,  68  N.  Y.  S.  413,  33  Misc.  236. 

Wliere  the  broker  for  the  purchaser  also  represents  the  ven- 
dor, the  transaction  is  not  binding,  irrespective  of  actual  fraud, 
without  the  intelligent  consent  of  both  parties.  Ferguson  v. 
Gooch,  94  Va.  1,  26  S.  E.  397,  40  L.  R.  A.  234. 

Where  defendant  contracted  for  a  sale  of  land  through  a 
real  estate  agent,  and  subsequently  received  a  payment  of  in- 
terest which  the  agent  had  received  from  the  vendee,  but  she 
had  not  left  the  contract  with  him  nor  authorized  him  to  col- 
lect; subsequently  she  sold  to  the  agent  her  interest  in  the 
contract,  and  he  sold  said  interest  to  the  plaintiff,  who  paid 
the  agent  therefor,  and  at  the  agent's  instance  defendant  made 
a  deed  to  plaintiff,  and  subsequently,  at  the  instance  of  the 
agent,  gave  a  deed  to  the  original  vendee;  such  vendee  had 
made  full  payment  to  the  agent,  but  he  had  not  paid  the 
money  over  to  defendant;  two  witnesses  testified  that  defend- 


PRINCIPAL   AND   AGENT.  209 

ant  acknowledged  drawing  the  contract  and  deed  to  the  orig- 
inal vendee,  and  that  the  agent  had  acted  for  her.  Held,  that 
there  was  no  evidence  to  show  that  the  real  estate  agent  in  re- 
ceiving payment  from  the  vendee  after  such  agent  had  bought 
the  contract  from  defendant  received  it  as  her  agent,  so  that 
plaintiff  could  recover  from  defendant  on  the  money  counts 
as  for  money  received  to  plaintiff's  use.  Rhode  v.  Marquis, 
135  Mich.  48,  97  N.  W.  53.  Compare  Frank  v.  Levy,  10  Ohio 
Cir.  Ct.  R.  554. 

The  owner  of  city  lots  employed  two  persons,  associated  to- 
gether as  real  estate  agents,  to  sell  them,  and  fixed  the  price 
at  $14,000 ;  a  purchaser  was  secured  by  the  agents  at  $16,000, 
to  whom  a  deed  was  executed  direct  by  the  owner,  the  agents 
accounting  only  for  $14,000,  claiming  that  to  be  the  full 
amount  received,  and  being  paid  a  commission  thereon  by  the 
employer;  on  discovering  that  $16,000  had  been  received  from 
the  purchaser,  the  owner  first  demanded  a  return  of  the  check 
given  for  commissions,  which  was  returned,  and  then  sued  the 
agents  for  the  additional  $2,000  and  recovered;  the  judgment 
being  right  on  the  merits,  and  the  issues  all  having  been  found 
in  favor  of  the  plaintiff,  and  well  supported  by  the  evidence, 
it  must  be  affirmed.  Collins  v.  McClurg,  1  Colo.  App.  348,  29 
P.  299;  Bahcock  v.  De  Mott,  160  Fed.  882;  Tate  v.  Aitken, 
5  Cal.  App.  505,  90  P.  836;  Borst  v.  Lynch,  133  Iowa,  567, 
110  N.  W.  1031;  Dater  v.  Jackson,  76  Kan.  568,  92  P.  546; 
Fulton  V.  Walters,  28  Pa.  Super.  Ct.  269,  reversed  216  Pa. 
St.  56 ;  Hall  V.  Kellogg,  94  S.  W.  389,  42  Tex.  Civ.  App.  636  j 
Lee  V.  Pattillo,  105  Ya.  10,  52  S.  E.  696;  Easterly  v.  Mills 
(Wash.  Sup.   '09),  103  P.  475. 

Defendants,  brokers,  being  authorized  by  plaintiffs  :c  sell 
land  for  $2,300,  intrusted  the  matter  to  G,  an  employe,  who 
persuaded  one  S  to  take  the  land  for  $2,300,  promising  that 
defendants  would  raise  the  money  for  him;  defendants  failed 
to  raise  the  money,  whereupon  S  begged  G  to  find  some  one 
to  take  the  contract  off  his  hands  and  save  him  the  $100  paid 
to  plaintiff;  defendants  having  then  disposed  of  part  of  the 
land  to  the  amount  of  $600,  II,  an  employe  of  defendants, 
with  knowledge  of  the  facts,  agreed  to  take  over  the  contract, 
S  to  take  another  part  of  the  land  for  $600,  counting  in  his 


210  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

$100  paid;  these  two  sales  for  $600  each  amounted  to  half 
of  the  land;  plaintiff  not  knowing  that  H  was  an  employe  of 
defendants  gave  him  a  deed,  and  received  from  him  $2,300, 
less  $200  commissions  paid  defendants;  H  later  sold  the  rest 
of  the  land  for  $2,100.  Held,  that  defendants  and  H  were 
guilty  of  a  legal  fraud  on  plaintiff,  and  must,  as  trustees,  ac- 
count to  him  for  the  profits  realized.  Powers  v.  Black,  159 
Pa.  St.  153,  28  A.  133;  Mowbry  v.  Randolph,  7  Cal.  App.  421, 
94  P.  403. 

One  who,  knowing  of  an  opportunity  to  sell  for  $30  an  acre, 
and  then  knowing  the  court  would  not  allow  a  third  of  the 
purchase  money  as  commissions,  gets  an  ostensible  purchaser, 
at  a  smaller  price,  as  a  means  of  passing  title,  is  precluded 
from  obtaining  a  commission  by  his  fraud  on  the  court  of 
which  the  receiver  was  an  ofScer.  Ryan  v.  Kaliler  (Tex.  Civ. 
App.   '98),  46  S.  W.  71. 

M's  agent  agreed  to  pay  plaintiff  a  commission  for  selling 
M's  land,  and  defendant  offered  to  exchange  his  land  there- 
for and  for  $210  in  addition ;  plaintiff  submitted  the  proposi- 
tion to  il's  agent,  who  accepted  it,  and  an  agreement  for  ex- 
change was  executed  by  such  agent  in  accordance  with  de- 
fendant's proposition  and  placed  in  plaintiff's  hands  to  have 
defendant  sign  it;  without  disclosing  the  fact  that  the  agree- 
ment for  exchange  had  already  been  executed  by  ]\I,  plaintiff 
told  defendant  that  a  trade  could  be  made,  but  defendant 
said  he  would  pay  no  commission,  but  would  trade  even,  if 
such  a  trade  could  be  effected,  and  executed  a  written  agree- 
ment to  that  effect;  the  exchange  was  duly  made  on  the  terms 
first  proposed  by  defendant,  and  the  $210  paid  over  to  him. 
Held,  to  show  that  plaintiff  was  acting  as  M's  agent,  and  that 
he  was  not  entitled  to  recover  the  $210,  or  any  other  commis- 
sion from  defendant.  Wilson  v.  Webster,  88  Iowa,  514,  55 
N.  W.  571 ;  Braden  v.  Randies,  128  Iowa,  653,  105  N.  W.  195. 

Where  it  appears  that  a  real  estate  agent  employed  to  sell 
land  had  acted  in  similar  transactions  for  the  vendor,  that 
after  making  the  sale  the  agent  was  active  in  assisting  the 
vendee 's  agent  in  clearing  up  some  defects  in  the  title ;  that 
he  filled  up  a  deed  and  carried  it  to  the  vendor  to  sign,  and 
then  took  it  away,  without  objection  on  the  part  of  the  ven- 


PRINCIPAL   AND   AGENT.  211 

dor,  delivered  it  to  the  vendee's  agent  and  received  the  pur- 
chase money,  which  he  appropriated  to  his  own  use,  and  that 
the  vendor  subsequently  admitted  to  disinterested  persons  that 
she  had  authorized  the  agent  to  collect  the  money,  the  loss 
thereof  must  fall  on  the  vendor,  under  whose  authority  the 
agent  acted.  Frank  v.  Levy,  10  Ohio  Cir.  Ct.  R.  554.  Com- 
pere RJiode  V.  Marquis,  135  Mich.  48,  97  N.  W.  53. 

If  a  real  estate  agent  authorized  to  sell  land  at  a  given 
price,  three  years  after,  when  the  value  has  greatly  advanced 
and  is  rapidly  rising,  sells  the  same  at  the  price  named,  and 
at  a  great  sacrifice,  without  informing  the  principal  of  the 
rise  in  value,  this  will  be  such  a  fraud  upon  the  principal 
that  a  court  of  equity  will  refuse  to  enforce  a  conveyance  to 
the  purchaser.  Proudfoot  v.  Wightman,  78  111.  553.  See  Wil- 
Txinson  v.  Churchill,  114  Mass.  184. 

Defendants  signed  and  acknowledged  a  note  and  deed  of 
trust,  and  left  them  with  their  agent,  a  professed  real  estate 
and  loan  broker,  for  the  purpose  of  having  him  obtain  the 
amount  of  the  note  from  complainant,  to  whom  the  note  was 
made  payable;  the  agent  presented  the  instrument  to  com- 
plainant, who  paid  oyer  to  him  the  amount  of  the  note  in 
good  faith,  and  took  the  note  and  deed ;  the  agent  fraudulently 
reported  that  he  could  not  use  the  note  and  trust  deed,  and 
in  the  presence  of  one  of  the  defendants  tore  up  and  destroyed 
what  purported  to  be  said  note  and  trust  deed.  Held,  that 
defendants  were  not  entitled  to  be  relieved  against  the  en- 
forcement of  the  instrument.  Kallhom  v.  Lipp,  20  111.  App. 
414. 

Plaintiff  authorized  defendants  to  sell  his  land  for  a  cash 
payment  and  notes,  and  on  their  representation  that  they  had 
found  a  purchaser,  and  the  cash  payment  and  notes  were  ready 
to  be  delivered  to  him,  executed  and  gave  them  a  bond  for 
title,  blank  as  to  the  name  of  the  purchaser;  defendant  failed 
to  deliver  the  cash  and  notes  on  demand  of  plaintiff,  and  af- 
terwards filled  in  the  bond  with  the  name  of  a  purchaser. 
Held,  that  defendants'  authority  as  plaintiff's  agents  to  use 
the  bond  for  title  determined  when  they  failed  to  deliver  the 
cash  and  notes.     Patton  v.  Cook,  83  Iowa,  71,  48  N.  W.  994. 

An  agent  employed  to  sell  land,  who  becomes  the  purchaser 


212  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

and  conceals  from  the  principal  that  a  greater  price  might 
have  been  got  from  another,  is  guilty  of  fraud,  and  the  con- 
tract ought  to  be  vacated;  he  will  be  compelled  to  reconvey 
the  land  on  payment  of  the  purchase  money,  or  so  much  as 
has  been  paid,  and  to  account  for  the  rents  and  profits  re- 
ceived by  him.  Moseley  v.  Bucl-,  3  Munf.  (Va.)  232;  Bod- 
man  v.  Manning   (Or.  Sup.   '09),  99  P.  657,  1135. 

Where  one  intrusts  money  to  an  agent  to  purchase  land  for 
him,  it  is  a  fraud  for  the  agent  to  purchase  the  land  in  his 
own  name  and  for  his  own  benefit,  and  equity  Mali  interpose 
for  the  relief  of  the  principal  by  compelling  a  conveyance  to 
him  of  the  land  so  purchased  by  the  agent.  Bliea  v.  Puryear, 
26  Ark.  344;  WMte  v.  Ward,_2%  Ark.  445. 

If  an  agent  effects  a  sale  of  the  land  of  his  principal  by 
false  representations,  or  other  fraud,  without  the  authority  or 
knowledge  of  the  principal,  the  latter  is  chargeable  with  such 
fraud,  in  the  same  manner  as  if  he  had  known  or  authorized 
it.  Laiv  V.  Grant,  37  Wis.  548.  Compare  Harrison  v.  Lake- 
man,  189  Mo.  581,  88  S.  W.  53.  Wliere  one  takes  a  convey- 
ance from  an  agent  authorized  to  sell  and  convey  the  land, 
knowing  of  the  fraud  or  breach  of  trust  of  the  agent,  he  can 
not  insist  on  the  validity  of  the  sale.  Morris  v.  Terrill,  2 
Rand.  (Va.)  6.     See  also  Sec.  845. 

Defendant  contracted  with  the  owner  of  land  for  an  option 
on  it  for  a  certain  time,  and  at  a  certain  price,  and,  if  he 
effected  a  sale,  he  was  to  receive  a  commission  therefor;  also, 
for  an  extension  of  the  time  he  should  pay  $200  which,  in  case 
he  should  "buy  the  land  or  find  a  purchaser"  therefor,  was 
to  be  deducted  from  the  price;  defendant  then  contracted  with 
plaintiff,  a  non-resident,  to  "procure  the  purchase  for  and  con- 
veyance to"  plaintiff  of  the  land  in  question  at  a  much  higher 
prtce,  to  act  as  plaintiff's  agent  in  the  management  of  the 
land,  that  all  the  proceeds  of  the  sales  should  be  applied  to 
the  reimbursement  of  plaintiff,  with  five  per  cent,  interest  and 
expenses;  that  the  surplus  should  be  equally  divided  between 
plaintiff  and  defendant;  defendant  appropriated  the  difference 
between  the  amount  received  from  plaintiff  and  the  sum  paid 
to  the  vendor,  concealing  from  plaintiff  the  difference  in  price. 
Held,  that  plaintiff  could  recover  the  amount  so  retained  by 


PRINCIPAL   AND   AGENT.  213 

the  fraud  of  the  defendant.  Hewitt  v.  Young,  82  Iowa,  224, 
47  N.  W.  1084;  DeL'Archerie  v.  Rutherford  (Wash.  '09),  102 
P.  1033. 

An  agent  for  the  owner  of  real  estate  conducted  a  negotia- 
tion for .  the  sale  of  the  same  on  behalf  of  the  owner,  on  the 
one  hand,  and  was  really,  on  the  other  hand,  purchasing  for 
himself,  jointly  with  an  ostensible  purchaser,  although  the 
transaction  purported  to  be  entirely  between  the  owner  and 
such  ostensible  purchaser.  Held,  that  the  transaction  was  a 
constructive  fraud  upon  the  owner,  and  that  a  purchase  thus 
made  could  not  be  sustained.  Hughes  v.  Washington,  72  111. 
84. 

Where  a  real  estate  agent  was  acting  under  a  contract  with 
the  owner  of  a  lot,  by  which  he  was  to  receive  a  certain  com- 
mission in  the  event  he  should  sell  the  lot  for  not  less  than 
a  certain  sum,  it  was  his  duty  before  changing  that  contract 
for  another  more  advantageous  to  himself,  to  impart  to  his 
principal  all  the  information  which  he  had,  and  especially  to 
inform  the  principal  of  negotiations  then  pending  for  a  sale 
of  the  lot,  and  his  failure  to  do  so  was  a  fraud  upon  the  prin- 
cipal's rights,  and  relieved  the  principal  from  all  obligations 
to  perform  the  new  contract.  Edmonson  v.  Baker,  12  Ky.  L. 
R.   (abst.)   93. 

Defendant  applied  to  a  real  estate  agent  for  a  mortgage 
loan ;  three  unsatisfied  mortgages  were  to  be  paid  with  the 
proceeds  of  the  loan;  plaintiff  agreed  with  the  agent  to  make 
the  loan  and  gave  the  agent  a  check  for  the  amount,  taking 
a  mortgage  on  the  property,  the  agent  assuring  him  that  he 
would  search  the  title  and  see  that  plaintiff  had  a  first  mort- 
gage, but  not  informing  him  of  the  outstanding  incumbrances ; 
on  execution  of  the  mortgage  defendant  instructed  the  agent 
to  pay  off  the  three  outstanding  mortgages  with  a  part  of  the 
money  in  his  possession ;  the  agent  paid  off  one  of  the  three 
mortgages  only  and  appropriated  the  rest  of  the  money.  Held, 
that  the  payment  of  the  amount  of  the  loan  to  the  agent  was 
a  payment  to  him  as  agent  of  defendant.  Henker  v.  Schwicker, 
73  N.  Y.  S.  656,  67  App.  Div.  196;  affirmed  174  N.  Y.  298, 
66  N.  E.  971. 

In  a  suit  against  a  real  estate  broker,  a  lawyer,  by  a  for- 


214  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

mer  customer  or  client,  to  vacate  certain  deeds  procured  by 
him  to  be  executed  by  her  in  his  interest,  and  for  the  can- 
cellation of  an  alleged  compromise  agreement  confirming  such 
deeds,  it  was  held  that,  on  a  review  of  the  evidence,  showing, 
among  other  things,  that  the  defendant  had  purchased  one  in- 
terest from  the  complainant  for  $1,175,  worth  $2,000,  and  that 
shortly  prior  thereto,  he  had  collected  over  $800  for  her,  for 
which  he  failed  to  account,  that  whether,  in  view  of  the  fidu- 
ciary relations  of  the  defendant  to  the  complainant,  the  bur- 
den was  on  him  to  show  the  validity  of  the  transaction,  the 
testimony,  as  a  whole,  was  sufficient  to  justify  a  decree  va- 
cating the  deeds  and  cancelling  the  agreement.  Holtzman  v. 
Linton,  27  App.  D.  C.  241. 

Where  a  land-owner  sued  his  brokers,  who  had  effected  a 
sale,  to  recover  a  portion  of  the  purchase  money  which  had 
been  retained  by  them,  on  the  ground  that  the  contract  was 
not  binding  on  him,  because  he  had  been  fraudulently  induced 
to  enter  into  it  by  the  act  of  the  defendants  in  not  correctly 
reading  the  contract  to  him,  and  also  on  the  ground  that  the 
contract  had  been  nullified  by  the  alteration  thereof  by  de- 
fendants, an  instruction  that,  if  plaintiff  signed  the  original 
contract,  and  defendants,  in  reading  it  to  him  had  fraudu- 
lently deceived  him,  then  the  contract  was  not  binding,  was 
not  erroneous,  on  the  theory  that  the  action  was  not  one  for 
the  cancellation  of  a  contract.  Harrison  v.  Lakeman,  189  Mo. 
581,  88  S.  W.   53.     Compare  Latv  v.   Grant,  37  Wis.  548. 

Where  a  broker  employed  to  sell  at  the  highest  obtainable 
price  makes  an  arrangement  with  the  prospective  purchaser 
to  pay  him  a  commission,  this  fraud  deprives  him  of  the  right 
to  recover  from  the  vendor.  Tasse  v.  Kindt,  125  Wis.  631, 
104  N.  W.  703;  Baner's  Law  &  Coll.  Co.  v.  Bradbury,  3  Cal. 
App.  256,  84  P.  1007. 

If  a  broker  employed  to  purchase  property  overstates  to 
his  principal  the  price  at  which  it  may  be  bought,  and  ap- 
propriates the  difference,  the  principal  may  recover  the  excess 
wrongfully  obtained.  Healey  v.  Martin,  68  N.  Y.  S.  413,  33 
Misc.  236;  Warren  v.  Burt,  58  Fed.  101,  7  C.  C.  A.  105. 

As  a  general  rule,  where  one  is  employed  by  the  owner  of 
property  to  sell  it,  he  can  not  sell  it  to  himself  alone,  or  in 


PRINCIPAL   AND   AGENT.  215 

company  with  others,  without  the  consent  of  the  owner;  but 
in  the  present  case  there  was  evidence  to  show  that  the  owner 
consented  to  the  making  of  such  a  sale,  provided  that  he  should 
receive  a  certain  amount,  without  liability  on  his  part  for  com- 
missions. Mitchell  V.  Gifford  (Ga.  Sup.  '10),  67  S.  E.  197 
(Syllabus). 

Sec.  315.     Fraud  of  broker  against  third  persons. 

If  in  negotiating  a  contract  in  behalf  of  the  principal  the 
broker  is  guilty  of  fraud  as  to  the  other  contracting  party, 
he  is  liable  to  him  therefor  in  damages.  Kice  v.  Porter,  21 
Ky.  L.  R.  871,  53  S.  W.  285,  22  Ky.  L.  R.  1704,  61  S.  W. 
266;  Todd  v.  Bourke,  27  La.  Ann.  385;  Hardacre  v.  Stewart, 
5  Esp.  (Eng.)  103;  Baker  v.  Brown,  82  Cal.  64,  22  P.  879. 
If  a  broker  employed  to  sell  property  which  is  subject  to  in- 
cumbrances misrepresents  or  conceals  the  fact  that  the  prop- 
erty is  incumbered,  he  is  liable  to  the  purchaser  in  damages. 
Riley  v.  Bell,  120  Iowa,  618,  95  N.  W.  170;  Chisholm  v.  Gads- 
den, 1  Strob.  (S.  C.)  220;  Arnot  v.  Biscoe,  1  Yes.  95  (Eng.) 
27  Eng.  Rep.  Reprint  914. 

Where  an  agent  for  the  sale  of  a  mining  property  repre- 
sented to  a  purchaser  that  he  was  to  receive  a  certain  com- 
mission on  the  sale  from  the  owners,  when  in  fact  he  was  paid 
five  times  that  amount,  the  price  paid  by  the  purchaser  should 
be  abated  in  the  amount  of  the  difference  between  the  com- 
mission received  and  the  one  specified.  Henry  v.  Mayer,  6 
Ari.  103,  53  P.  590. 

An  agent  having  authority  to  sell  both  real  and  personal 
property  for  a  certain  sum  can  not,  without  the  consent  of 
his  principal,  take  over  to  himself  the  personal  property  on 
receiving  the  sum  for  the  real  estate.  Northup  v.  Bathrick, 
80  Neb.  36,  113  N.  W.  808.  Where  agents  for  the  sale  of  land 
concealed  from  the  purchasers  the  fact  that  they  were  part 
owners  of  the  land,  but  instead,  expressed  an  intention  to  pur- 
chase an  interest  themselves  upon  the  same  terms  as  they  were 
selling  to  the  purchasers,  such  representations  constituted  such 
a  fraud  as  would  avoid  the  purchase.  Wren  v.  Moncure,  95 
Va.  369,  28  S.  E.  588. 

Where  land  stood  in  the  name  of  a  third  party,  the  real 


216  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

owner  procured  a  broker  to  sell  the  land  who  made  false  rep- 
resentations as  to  its  value ;  the  nominal  owner  of  the  land 
had  title  to  a  bond  and  mortgage  given  in  part  payment  of 
the  price.  Held,  that  the  fraud  of  the  real  owner  and  the 
broker  was  imputable  to  the  person  in  whose  name  they  acted. 
Fairchild  v.  McMahon,  139  N.  Y.  290.  34  N.  E.  779,  affirming 
20  N.  Y.  S.  31,  65  Hun,  621. 

"Where  land  was  sold  by  a  broker  who  made  representations 
to  induce  defendant  to  purchase,  which  were  known  to  the 
broker  to  be  false,  but  were  relied  upon  by  defendant  to  his 
injury,  plaintiff,  availing  himself  of  the  benefits  of  the  trans- 
action, is  bound  by  the  representations,  whether  the  broker 
was  his  appointed  agent  or  not.  Williamson  v.  Tyson,  105 
Ala.  644,  17  S.  336. 

Sec.  316.     Fraud  of  sub-agent. 

Plaintiff,  who  had  contracted  with  a  real  estate  agent  to  co- 
operate with  him  in  selling  to  a  third  person  certain  prop- 
erty, with  knowledge  that  such  person  was  willing  to  purchase 
at  a  certain  sum,  induced  the  owner  to  sell  for  less,  so  that 
he  could  make  the  difference.  Held,  that  he  could  not  recover 
from  the  real  estate  agent  his  agreed  proportion  of  the  com- 
mission.    Talbott  V.  Luckett   (Md.  Sup.    '94),  30  A.  565. 

A  broker  was  employed  to  procure  a  purchaser  for  a  farm 
within  a  specified. time,  at  a  price  which  should  net  the  owTier 
$11,000  and  the  broker  $875,  or  such  less  sura  as  should  be  sat- 
isfactory to  the  broker's  agent  having  charge  of  the  transac- 
tion; the  owner  sold  the  premises  to  a  purchaser  procured  by 
the  agent  of  the  broker  for  $11,000,  and  the  purchaser  paid 
the  agent  $100  for  commissions.  Held,  that  the  owner,  if  he 
knew  that  the  agent  in  conducting  the  sale  violated  the  in- 
structions of  the  broker,  was  liable  to  the  broker  for  commis- 
sions to  the  extent  of  $875,  on  the  ground  that  he  was  guilty 
of  fraud  on  the  broker.  Haven  v.  Tartar,  124  Mo.  App.  691, 
102  S.  W.  21. 

A  vendor  of  land  receiving  the  benefits  of  a  transaction  is 
liable  for  fraudulent  representations  by  the  salesman,  though 
he  was  only  a,  sub-agent.  Nelson  v.  Title  &  Trust  Co.  52 
Wash.  258,  100  P.  730. 


PRINCIPAL   AND   AGENT,  217 

Sec.  317.    Fraud  of  principal  against  broker. 

Defendant  employed  plaintiff  to  sell  his  farm  and  some  per- 
sonal property,  on  an  understanding  that  the  plaintiff  should 
receive  a  certain  commission  if  he  could  procure  a  purchaser 
for  $18,000,  otherwise  nothing;  plaintiff  secured  a  purchaser 
who  bid  $17,000  for  the  farm  and  defendant  rejected  the  offer, 
and  falsely  represented  to  plaintiff  that  he  had  concluded  to 
keep  the  property  and  settled  with  plaintiff  for  a  nominal  sum ; 
defendant  then  approached  the  bidder  and  sold  him  the  farm 
and  some  personal  property  for  $17,500,  and  sold  the  remain- 
der of  the  personal  property  on  the  public  market  for  $720. 
Held,  that  the  statement  having  been  fraudulently  made,  de- 
fendant was  liable  for  the  agreed  commission.  Bowe  v.  Gage, 
132  Wis.  441,  112  N.  W.  469;  Glentworth  v.  Luther,  21  Barb. 
(N.  Y.)  145;  McDermott  v.  Malwney,  139  Iowa,  292,  115  N, 
W.  32;  McGovern  v.  Bennett,  146  Mich.  558,  109  N.  W.  1055, 
13  D.  L.  N.  853. 

If  a  principal,  in  order  to  defraud  the  broker  of  his  right 
to  a  commission,  conveys  the  property  to  a  third  person  for 
the  benefit  of  the  customer  found  by  the  broker,  and  the  -rea- 
son for  the  act  being  to  conceal  the  same  from  the  knowledge 
of  the  broker,  the  latter  may  sue  for  the  commission;  and  it 
w'as  error  to  dismiss  the  complaint  because  the  proof  sustained 
an  action  for  fraud  and  did  not  prove  the  cause  of  action  al- 
leged. Martin  v.  Fega^i,  88  N.  Y.  S.  472,  95  App.  Div.  154; 
Glade  v.  E.  111.  Min.  Co.,  129  Mo.  App.  443,  107  S.  W.  1002. 
See  also  Sec.  487a.  A  principal  conspiring  with  a  sub-agent  to 
deprive  the  broker  of  his  commission  is  liable  to  the  latter 
therefor,    ffaven  v.  Tartar,  124  Mo.  App.  691,  102  S.  W.  21. 

Sec.  318.     Fraud  of  third  persons  against  broker. 

Where  a  vendee  fraudulently  conceals  the  fact  that  she  pur- 
chased through  a  broker  employed  by  the  vendor,  and  repre- 
sents that  a  third  person  was  the  procuring  cause  of  the  sale, 
whereby  the  vendor  is  induced  to  pay  the  commission  to  such 
third  person,  the  broker  can  not  sue  the  purchaser  for  the 
lost  commission,  as  the  vendor's  liability  to  him  remains  un- 
affected by  such  payment  to  the  third  person.  Cohen  v.  Hirsch- 
field,  16  Daly  (N   Y.),  96,  9  N.  Y.  S.  512.     A  broker  may  be 


218  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

deprived  of  his  right  to  commissions  by  the  fraudulent  eon- 
duet  or  misrepresentations  of  third  persons  in  privity  with 
him.     Thiviiig  v.  Clifford,  136  Mass.  482. 

Sec.  319.     Fraud  of  principals  inter  se. 

Where  two  persons  owning  real  estate  intrust  one  with  the 
sale  thereof,  who  has  it  conveyed  to  a  third  person  for  a  price 
agreed  upon,  the  money  being  paid  by  the  joint  owner  with 
a  view  to  acquiring  title  to  the  property,  such  an  arrange- 
ment is  a  fraud  on  the  party  owning  the  other  moiety.  Eld- 
ridge  V.  Walker,  60  111.  230 ;  Hughes  v.  Washington,  72  111.  84. 

Where  land  stood  in  the  name  of  a  third  party,  the  real 
owner  procured  a  broker  to  sell  the  land,  who  made  false  rep- 
resentations as  to  its  value;  the  nominal  owner  of  the  land 
had  title  to  a  bond  and  mortgage  given  in  part  payment  of 
the  price.  Held,  that  the  fraud  of  the  real  owner  and  the 
broker  was  imputable  to  the  person  in  whose  name  they  acted, 
Fairchild  v.  McMalion,  139  N.  Y.  290,  34  N.  E.  779.  A  real 
estate  broker  who  produces  one  ready  and  willing  to  purchase, 
and,  an  executory  contract  of  sale  has  been  entered  into  be- 
tween the  principal  and  the  proposed  purchaser,  but  able 
to  do  so  only  by  perpetrating  a  fraud  on  a  third  person,  the 
principal  refusing  to  execute,  is  not  entitled  to  a  commission. 
Zittle  V.  Schlesinger,  46  Neb.  244,  65  N.  W.  892;  Moskowitz 
V.  Hornherger,  46  N.  Y.  S.  462,  20  Misc.  558. 

Sec.  320.  Debatable  acts  of  broker  held  not  to  constitute 
fraud. 

A  broker  employed  to  find  a  buyer  is  not  necessarily  guilty 
of  fraud  because  he  seeks  to  induce  his  principal  to  reduce 
the  price,  even  though  he  might  know  he  could  obtain  the  price 
asked.  Gorman  v.  Eargis,  6  Okla.  360,  50  P.  92.  Compare 
Hohart  v.  Sherhurne,  66  Minn.  17,  68  N.  W.  841.  See  also 
Sees.  290,  291. 

It  is  not  an  act  of  disloyalty  after  obtaining  an  option  on 
land  at  the  lowest  price  for  which  the  owner  would  sell  and 
suspecting  that  his  employer  would  not  take  at  that  price,  for 
the  broker  with  his  employer's  knowledge  to  solicit  other  pur- 
chasers whom  he  informed  that  his  employer  should  have  the 
first  right  to  purchase.     Hinton  v.  Coleman,  76  Wis.  221,  45 


PRINCIPAL   AND   AGENT.  219 

N.  W.  26.  A  broker  negotiated  a  sale  of  plaintiff's  land  to 
defendant,  but  had  the  deed  made  out  to  a  third  person,  who 
afterwards  conveyed  to  defendant.  A  few  weeks  after  the  sale 
defendant  agreed  to  let  the  broker  sell  the  land  for  him  at 
an  advance,  the  profits  to  be  equally  divided  between  them. 
Plaintiff  did  not  know  at  the  time  of  the  sale  that  defendant 
was  the  purchaser  and  there  was  then  no  arrangement  or  under- 
standing between  defendant  and  the  broker  as  to  any  resale 
of  the  property  or  division  of  the  profits.  Held,  that  there 
was  nothing  in  the  transaction  in  fraud  of  plaintiff,  and  the 
subsequent  sale  did  not  constitute  a  fraud  on  the  vendor. 
Lawrence  v.  Layton,  145  111.  92,  34  N.  E.  53. 

A  real  estate  broker  is  not  liable  to  a  customer  for  false 
representations  respecting  lands,  where  he  states  that  his  in- 
formation is  derived  from  his  principal,  and  the  facts  respect- 
ing which  the  representations  are  made  are  not  such  as  would 
be  peculiarly  within  his  knowledge.  Griffing  v.  Diller,  21  N. 
Y.  S.  407. 

If  a  broker  acts  as  a  mere  middleman  his  conduct  in  con- 
cealing from  each  principal  his  agreement  with  the  other  is 
not  fraudulent.  Jarvis  v.  Schaefer,  105  N.  Y.  289,  11  N.  E. 
634. 

An  agent  authorized  by  contract  to  sell  real  estate  to  any 
purchaser  thereafter  to  be  secured,  is  not  guilty  of  fraud  for 
failing  to  disclose  the  identity  of  the  proposed  purchaser,  where 
it  appears  that  the  vendors  neither  asked  nor  made  any  at- 
tempt to  ascertain  who  such  purchaser  was.  Bank  v.  Garvey, 
66  Neb.  767,  92  N.  W.  1025,  affirmed  on  rehearing  66  Neb.  767, 
99  N.  W.  666. 

Where  a  real  estate  agent  with  authority  to  sell  his  prin- 
cipal's land  reports  to  another  agent  of  the  principal  that  he 
can  not  sell  the  land  so  as  to  net  the  principal  a  certain  sum, 
and  that  he  is  making  a  sale  for  a  greater  sum,  but  that  the 
excess  will  be  retained  by  him  as  his  commission,  and  no  con- 
tract is  shown  that  he  shall  receive  any  specified  amount  for 
his  service,  though  the  amount  of  the  excess  is  not  disclosed, 
the  agent  commits  no  fraud  by  not  disclosing  such  amount. 
Deming  Inv.  Co.  v.  Meyer  (Okla.  Sup.  '07),  91  P.  846;  Ful- 
ton v.  Waiters,  216  Pa.  56,  64  A.  860.     Compare  Sec.  456. 


220  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

In  an  action  to  recover  a  real  estate  broker's  commissions, 
it  appeared  that  the  owners,  in  naming  their  price,  had  in- 
formed the  broker  that  they  were  willing  to  sell  for  less,  if 
necessary,  and  that  a  prospective  purchaser  who  had  obtained 
an  option  from  the  broker  was,  before  the  owners  had  reduced 
tjie  price,  negotiating  to  sell  the  land  to  a  third  person  for 
less  than  the  owners'  upset  price.  Held,  that  the  facts  did 
not  conclusively  prove  that  the  broker  had  acted  in  bad  faith. 
Harveij  v.  Lindsaij,  117  Mich.  267,  75  N.  W.  627. 

Proof  that  an  owner  employing  a  broker  to  procure  a  pur- 
chaser allowed  the  broker  to  take  as  his  commission  a  part  of 
the  money  paid  by  the  purchaser  procured  by  him,  in  reliance 
on  the  broker's  representations  that  the  purchaser  was  able 
to  and  would  consummate  his  purchase  according  to  the  con- 
tract entered  into  between  him  and  the  owner,  and  that  the 
purchaser  was  insolvent,  was  insufficient  to  authorize  a  recov- 
ery by  the  owner  of  the  commissions  paid,  on  the  ground  of 
fraud  of  the  broker.  Moore  v.  Irvin,  89  Ark.  289,  116  S.  W. 
662. 

A  real  estate  broker  had  a  customer  desirous  of  purchasing 
property  of  a  particular  character,  but  the  customer  had  no 
definite  intention  of  buying  any  particular  property.  The 
broker  entered  into  negotiations  with  the  owner  to  employ  him 
to  procure  a  purchaser.  The  customer  purchased  the  prop- 
erty. Prior  to  the  broker's  employment  the  customer  had  not 
communicated  with  the  owner,  nor  with  any  one  representing 
him  in  relation  to  the  purchase.  The  broker  represented  to 
the  owner  that  he  thought  that  he  could  produce  a  purchaser 
willing  to  purchase  on  the  terms  specified,  on  his  being  al- 
lowed a  commission  for  so  doing.  Held,  that  the  broker  was 
not  guilty  of  fraud  in  obtaining  his  contract  to  procure  a  pur- 
chaser, and  he  could  recover  his  commissions.  Larson  v.  Thoma 
(Iowa  Sup.   '09),  121  N.  W.  1059. 

A  broker  does  not  forfeit  his  right  to  commissions  on  a  sale 
of  real  estate  that  he  was  instrumental  in  bringing  about,  be- 
cause he  had  other  real  estate  for  sale,  belonging  to  other  per- 
sons, which  he  tried  to  sell  to  the  same  purchaser.  Lemmon 
V.  Macklem  (Mich.  Sup.  '09),  122  N.  W.  77. 


PRFNCIPAL   AND   AGENT.  221 

Sec.  321.    Points  of  practice  in  actions  for  fraud. 

The  vendee's  right  to  rescind  heeause  the  vendor  gave  a 
secret  commission  to  the  vendee's  agent  is  not  aflPected  by  the 
fact  that  a  part  of  the  coiiunission  paid  by  the  vendor  to  the 
vendee's  agent  was  for  services  previously  rendered  by  such 
agent  in  former  transactions.  Light  cap  v.  Nicola,  34  Pa. 
Super.  Ct.  189.     See  also  Sec.  559. 

Where  the  discovery  of  fraud  in  a  contract  for  the  purchase 
of  land  is  not  made  l)y  the  vendee  until  after  suit  has  been 
brought  for  the  purchase  money,  the  vendee  has  the  right  to 
set  up  the  fraud  as  ground  for  rescission  and  as  a  defense  to 
the  suit,  arid  he  may  do  this  where  there  is  a  delay  of  nearly 
two  and  a  half  months  after  the  discovery  of  the  fraud,  if 
there  has  been  no  such  change  in  the  meantime  as  to  make 
the  rescission  inequitable.    Id.    Compare  Sec.  572. 

Where  a  real  estate  broker  fraudulently  induces  his  prin- 
cipal to  trade  property  on  a  valuation  of  $4,400  and  sells  it 
for  $5,750,  in  an  action  by  the  principal  against  the  broker  for 
the  difference,  the  latter  could  not  recoup  the  amount  of  ex- 
penses incurred  in  making  the  sale,  nor  a  portion  of  tlie  price 
paid  one  who  was  associated  with  him  in  the  fraud.  Van 
Raulte  V.  Epstein,  202  ^lo.  173,  99  S.  W.  1077 ;  Great  Western 
Gold  Co.  V.  Chambers   (Cal.  Sup.    '09),  101  P.  6.  ' 

In  an  action  to  recover  on  a  contract  for  commissions  for 
a  sale  of  real  estate,  in  which  defendant  alleged  that  the  con- 
tract was  procured  through  fraud,  and  after  plaintiff  had  ne- 
gotiated the  sale,  the  burden  of  proof  was  on  defendant.  Stein 
V.  Whitney,  23  Ky.  L.  R.  2179,  66  S.  W.  820.  Contra,  Hanna 
V.  Haynes,  42  Wash.  284,  84  P.  861. 

A  broker  employed  to  purchase  land,  who  conceals  from  the 
principal  the  fact  that  the  vendor  will  pay  the  broker  a  com- 
mission on  making  a  sale,  has  the  burden  of  prov'ing  perfect 
fairness  in  the  transaction,  and,  in  the  absence  of  satisfactory 
proof,  equity  will  consider  him  as  guilty  of  constructive  fraud. 
Hanna  v.  Haynes,  42  Wash.  284,  84  P.  861.  Compare  Stein 
V.  Whitney,  23  Ky.  L.  R.  2179,  m  S,  W.  820. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud 
of  his  agent  in  effecting  a  sale ;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 


222  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

repaid,  may  sue  the  vendor  in  assumpsit  for  it,  or  he  may 
sue  the  agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L. 
288.  A  recovery  in  an  action  by  a  principal  against  a  broker 
for  fraudulently  representing  that  the  worthless  property  on 
which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Ruhens  v.  Mead, 
121  Cal.  17,  53  P.  432;  Van  Baulte  v.  Epstein,  202  Mo.  173, 
99  S.  W,  1077,  supra. 

Although  the  owner  of  the  land  neither  authorized  another 
to  sell  it  for  him,  nor  has  authorized  the  false  representation 
made  in  the  course  of  the  sale,  yet  if  such  owner  accepts  the 
proceeds  of  the  transaction,  hg  ratifies  the  acts  of  his  agent, 
and  may  be  held  liable  for  the  fraud  practiced  by  the  latter. 
Krunner  v.  Beach,  25  Hun  (N.  Y.),  293.     See  Sec.  24. 

The  rule  of  law  forbidding  the  admission  of  evidence  of  an 
oral  agreement  made  prior  to  or  contemporaneously  with  a 
written  agreement,  does  not  preclude  the  admission  of  evidence 
tending  to  show  that  the  written  agreement  in  question  was 
fraudulently  obtained,  or  that  it  resulted  from  accident  or  mu- 
tual mistake.     Ciilp  v.  Poivell,  68  Mo.  App.  238. 

It  is  immaterial  whether  the  design  is  fraudulent  or  not,  a 
sale  by  an  agent  of  his  own  property  to  his  principal  can  be 
set  aside  by  the  latter  on  discovery  of  the  facts.  Bain  v. 
Brown,  56  N.  Y.  285;  Kutz  v.  Fisher,  8  Kan.  90;  Ackenburg 
V.  McCool,  36  Ind.  473.     See  also  Sec.  389b. 

Where  the  assignee  of  a  purchaser  of  land  from  a  broker 
sued  the  principal  for  breach  of  contract,  defendant  could  not 
impeach  the  contract,  on  the  ground  that  it  was  not  signed 
by  the  principal,  and  for  fraud,  without  pleading  such  de- 
fense.   Kurinsky  v.  Lynch,  201  Mass.  28,  87  N.  E.  70. 


CHAPTER  V. 


SECTION. 

322.     When   a  broker  is  and  when 
not   liable   for   interest. 
Broker       obtaining       interest 

hostile    to    principal. 
Improvement      of      property 
beyond      authority      oi 
agent. 
Agent     neglecting     to     place 

insurance   liable. 
Illegal   purposes. 
Illegal   contract. 

328.  Implied   powers. 

329.  Joint   owner  condoning  fraud 

liable. 

Agent  to  sell  has  no  power 
to  grant  license  to  cut 
timber. 

What  a  principal  must  do 
to  escape  liability. 

Power  confirming  sales  con- 
fers  power  to   sell. 

Power  to  sell  land  acquired 
afterward. 

Power  to  sell  land  not  con- 
veyed. 

Power  to  sell  land  on  credit, 
may   receive   payment. 

Power  to  sell  for  settlement 
not  violated,   when. 

Power  to  sell  land,  not 
power  to  lease. 
337a.  Authority  of  agent  construed 
to  authorize  authority  to 
sell,  but  not  to  convey  real 
estate. 
337b.  Power  to  sell  does  not  in- 
clude power  to  give  an 
option. 

223 


323. 


324. 


325. 

326. 
327. 


330. 


331. 


332. 


333. 


334. 


335. 


336. 


337. 


SECTION. 

338.  Agent  buying  liable  for  value 

of  land  warrants. 

339.  Authority   to   locate   and   sur- 

vey, no  power  to  sell. 

340.  Power  to   sell  in  lots  none  to 

sell  otherwise. 

341.  Broker  not  liable  for  mutual 

mistake   as   to   power. 

342.  Agent   to    sell   land   can   take 

nothing  but  money. 

343.  Broker    has    no    right    to    re- 

ceive   Mexican    money. 

344.  W^hen    broker    need    not    tell 

principal    what    land    sold 
for. 

345.  Agent  knowing  defect  in  title 

cannot   acquire. 

346.  Broker    guilty    of    negligence 

barred   commission. 

347.  Owner    liable    to    prospective 

tenants  for   injuries. 

348.  Brokerage    contract    not     set 

aside   for  fraud. 

349.  Broker  liable  for  loss  through 

negligence. 

350.  Broker    departing    from     in- 

structions  liable. 

351.  Broker,    when    not   liable    for 

loss  on  forged  notes. 

352.  Broker,   when   not   authorized 

to   collect   notes. 

353.  ilaker  may   pay  when  broker 

has  note. 

354.  Agent    has    no    power    to    re- 

ceive  before    due. 

355.  Agent   to   collect   interest,   no 

power  to  collect  principal. 


224  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

SIXTTON.  SKCTION. 

350.     Ajfent      doing      all      business    3(52.     When     principal     cannot     es- 
niay   collect  note.  cape   liability   for   comuiis- 

357.  Debtor       should        see       that  sions. 

agent   has  security.  3G3.     Agent   to   make  written,   can- 

358.  \A'hen  broker  entitled  only  to  not   make   oral   contract. 

nominal   damages.  363a.  A  broker  not  entitled  to  com- 

359.  Notice  to   agent.  mission     en     contract    not 

360.  Broker   must   give   notice.  conforming  with  authority. 
301.     When   notice  waived.  304.     Agent    under    oral    authority 

cannot     bind     by    written 
covenants. 

Sec.  322.    When  a  broker  is  and  when  not  liable  for  interest. 

A  real  estate  broker  receiving  money  and  not  applying  it 
to  the  purposes  specified  in  'the  agreement  under  which  he 
acted,  within  a  reasonable  time,  is  chargeable  with  interest. 
Harrison  v.  Long,  4  Desaus.  (S.  C.)  110.  A  broker  is  not  lia- 
ble for  interest  on  money  of  his  principal  unless  in  default, 
or  unless  he  has  made  use  of  the  money  for  his  own  profit. 
Williams  v.  Storrs,  6  Johns.  Ch.    (N.  Y.)    353. 

Where  a  broker  was  only  entitled  to  commissions  out  of  the 
last  three  of  a  series  of  notes  to  be  given  by  the  purchaser 
for  the  property,  which  were  to  be  executed  as  of  September 
1,  1902,  and  were  to  mature  on  the  first  days  of  July,  August 
and  September,  1907,  the  broker,  on  the  principal's  failure 
to  complete  the  contract,  was  only  entitled  to  recover  interest 
on  the  contract  commissions  from  August  1,  1907.  Bankers' 
Loan  &  Inv.  Co.  v.  Spindle,  108  Va.  426,  62  S.  E.  266. 

Sec.  323.     Broker  obtaining  interest  hostile  to  principal. 

Where  a  broker  who  procured  a  sale  of  bonds,  secretl}'  ob- 
tained an  interest  hostile  to  his  principal,  he  was  entitled  to 
recover  the  commission  paid  to  him.  Guidetti  v.  Tuoti,  102 
N.  Y.  S.  499,  52  Misc.  657;  Campbell  v.  Baxter,  41  Neb.  729, 
60  N.  W.  90.     See  also  Sec.  382. 

Sec.  324,     Improvement  of  property  beyond  authority  of  agent. 

Unless  specially  authorized  a  real  estate  agent  has  no  right 
to  contract  for  the  improvement  of  property.  Rivervieiv  Land 
Co.  V.  Dance,  98  Va.  239,  35  S.  E.  720.  See  reference  under 
Sec.  307. 


PRINCIPAL   AND   AGENT.  225 

Sec.  325.  Agent  neglecting  to  place  insurance,  followed  by 
loss,  liable. 
An  agent  whose  duty  it  is  to  insure  the  property  of  his 
principal,  and  who  neglects  to  do  so,  is  liable  to  the  latter  for 
any  loss  of  property  occasioned  by  the  peril  that  he  should 
have  insured  against.  Strong  v.  High,  2  Rob.  (La.)  103.  See 
also  Sees.  346,  349. 

Sec.  326.     Illegal  purposes. 

An  agent  of  the  owner  of  property  is  not  presumed  to  have 
any  authority  to  lease  the  premises  for  an  illegal  purpose. 
Stover  V.  Flower,  120  Iowa,  514,  94  N.  W.  1100 

Sec.  327.     Illegal  contract. 

Wliere  the  contract  negotiated  is  illegal,  the  broker  can  not 
recover  for  his  services,  though  his  principal  has  received  the 
money  arising  from  it.  Belding  v.  Pitkin,  2  Caines  (N.  Y.), 
147. 

Sec.  328.    Implied  powers. 

(a)  A  non-resident  owner  employing  a  non-resident  agent 
to  sell,  impliedly  authorizes  the  latter  to  employ  a  broker  to 
effect  a  sale.  Eastland  v.  Maneijf  36  Tex.  Civ.  App.  147,  81 
S.  W.  574. 

(b)  If  the  contract  of  employment  fails  to  state  the  terms 
of  sale,  terms  satisfactory  to  the  principal  are  implied.  Fair- 
child  V.  Cunningham,  84  Minn.  521,  88  N.  W.  15;  Montgomery 
v.  Knickerbocker,  50  N.  Y.  S.  128,  27  App.  Div.  117. 

(c)  A  contract  of  agency  will  not  be  construed  to  be  ex- 
clusive unless  established  expressly  or  by  clear  implication. 
Crook  V.  Forst,  116  Ala.  395,  22  S.  540;  White  v.  Benton,  121 
Iowa,  354,  96  N.  W.  876;  Kidman  v.  Howard,  18  S.  D.  161, 
99  N.  W.  1104. 

(d)  A  revocation  may  be  implied  from  circumstances.  Brook- 
shire  V.  Brookshire,  8  Ired.  (N.  C.)  74. 

(e)  Authority  to  sell  and  convey  lands  for  cash  includes 
authority  in  the  agent  to  receive  payment  of  the  purchase 
money.     Yerby  v.  Grigsby,  9  Leigh  (Va.),  387. 

(/)  Authority  to  make  a  contract  for  the  sale  of  lands,  au- 
thorizes the  agent  to  receive  so  much  of  the  purchase  money 


226  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

as  is  paid  in  hand,  on  the  sale,  as  an  incident  to  the  power 
of  sale.    Id. 

(g)  A  broker  authorized  to  sell,  partly  fo..-  cash  and  partly 
on  time,  may  determine  the  amount  of  the  cash  payment.  Tay- 
lor V.  Cox  (Tex.  Sup.  '87),  7  S.  W.  69. 

(h)  The  word  "sell"  in  a  power  of  attorney  authorizing 
a  party  to  sell  or  lease  any  and  all  real  estate,  etc.,  gives 
ample  power  to  complete  a  sale  by  making  a  deed  of  convey- 
ance. Hemstreet  v.  Burdick,  90  111.  444.  Compare  Bacon  v. 
Davis  (Cal.  App.   '08),  98  P.  71. 

(i)  A  power  of  attorney  to  sell  one-half  of  a  tract  of  land 
imposes  discretion  to  determine  which  half.  Alemany  v.  Daly, 
36  Cal.  90. 

(j)  A  power  to  do  all  things  concerning  the  grantor's  real 
and  personal  estate,  gives  power  to  make  leases,  with  privilege 
of  purchase.  De  Rutte  v.  Muldrew,  16  Cal.  505. 

(k)  A  power  of  attorney  to  sell,  without  restrictions,  au- 
thorizes a  sale  of  real  estate,  with  covenants  of  general  war- 
ranty. Schidtz  V.  Griffin,  121  N.  Y.  294,  24  N. -E.  480;  Jasper 
v.  Wilson  (N.  M.  Sup.  '08),  94  P.  951.     But  see  Sec.  418. 

(I)  Under  a  general  power  to  sell  property  the  agent  may 
bind  his  principal  by  a  contract  of  sale.  Hay  dock  v.  St  owe, 
40  N.  Y.  363.    Compare  Weatherhead  v.  Ettinger,  78  0.  S.  104. 

(m)  In  the  absence  of  an  express  agreement  on  the  subject, 
an  agent  employed  to  sell  land  is  entitled  to  commissions  on 
making  a  sale.     Harrison  v.  Long,  4  Desau.   (S.  D.)   110. 

(n)  Where  defendant  in  employing  a  broker  to  sell  land 
did  not  purport  to  bind  himself  individually,  but  to  bind  a 
corporation  of  which  he  was  president,  in  an  action  on  the 
contract,  he  can  not  be  held  individually  liable  for  the  com- 
missions, but  may  be  held  for  breach  of  an  implied  warranty 
of  authority  to  the  extent  of  the  damages  resulting  from  the 
misrepresentation.  Groeltz  v.  Armstrong,  125  Iowa,  39,  99  N. 
W.  128. 

(o)  Express  authority  of  a  village  to  borrow  money  and 
issue  bonds  therefor,  includes  authority  to  employ  a  person 
to  procure  a  purchaser  for  the  bonds,  whether  he  be  a  broker 
or  not.  Armstrong  v.  Village  of  Ft.  Edwards,  159  N.  Y.  315, 
53  N.  E.  1116. 


PRINCIPAL   AND    AGENT.  227 

(p)  The  cashier  of  a  bank  having  implied  authority  as  its 
executive  officer  to  contract  for  the  disposal  of  lands  acquired 
by  the  bank  in  the  collection  of  its  credits,  will  bind  the  bank 
by  his  contract  to  pay  commissions  for  the  disposal  of  lands 
placed  in  tlie  hands  of  a  broker,  but  which,  through  mistake 
in  identity,  the  bank  does  not  own.  Arnold  v.  Nat.  Bk.  of 
Waupaca,  126  Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  (N.  S.)  580. 

Sec.   329.     Joint   owner  condoning  fraud  liable  for  benefits 
received. 

A  joint  owner  of  real  estate  who  consents  to  a  listing  there- 
of by  his  co-owner  with  real  estate  agents  for  sale,  receives 
part  of  the  consideration,  and  does  not  repudiate  the  sale  made 
by  the  agents,  after  discovery  that  they  were  guilty  of  fraud, 
is  estopped  to  deny  connection  with  the  fraud,  but  will  be  held 
liable  only  to  the  extent  of  the  benefit  actually  received.  Alger 
v.  Anderson,  78  Fed.  729. 

Sec.  330.    An  agent  to  sell  has  no  authority  to  grant  a  license 
to  cut  timber. 

An  agent  has  no  authority  to  license  one  to  cut  timber  by 
virtue  of  his  authority  to  bargain  and  sell  land.  Huhbard  v. 
Elmer,  7  Wend.   (N.  Y.)   446.     See  references  under  Sec.  307. 

Sec.  331.  What  a  principal  must  do  to  escape  liability  to  the 
broker  for  commissions. 
A  principal  who  obtains  knowledge  from  his  broker  that  an 
intending  purchaser  procured  by  the  broker  is  the  person  of 
whom  he  had  learned  from  another  source  as  a  possible  pur- 
chaser, owes  to  the  broker  the  duty  of  either  terminating  the 
agency  or  notifying  him  that  he  intends  personally  to  conduct 
future  negotiations,  and  on  his  failure  to  do  so,  the  broker  is 
entitled  to  commissions,  although  the  sale  is  completed  by  the 
owner  himself.    Carroll  v.  Pettit,  22  N.  Y.  S.  250,  67  Hun,  418. 

Sec.  332.    A  power  of  attorney  confirming  all  sales  and  leases 
confers  power  to  sell. 
A  power  of  attorney  confirming  all  sales,   leases  and   con- 
tracts of  every  description,  confers  a  power  to  sell  land.    Sulli- 
van V.  Davis,  4  Cal.  291, 


228  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  333.    Power  to  sell  any  of  constituent's  land  authorizes 
the  sale  of  that  acquired  afterwards. 

A  power  to  sell  any  of  the  constituent's  real  estate,  author- 
izes the  attorney  to  sell  real  estate  which  the  constituent  ac- 
quires after  the  execution  of  such  power.  Fay  v.  Winchester, 
4  Mete.   (Mass.)   513;  BurUeij  \.  Judd,  22  Minn.  287. 

Sec.  334.  Power  to  sell  land  not  previously  conveyed,  author- 
izes sale  of  tract  not  conveyed. 
Under  a  power  to  sell  all  the  land  of  the  principal  which 
the  latter  has  not  previously  conveyed,  the  attorney  is  author- 
ized to  sell  land  that  his  principal  had  sold  but  not  conveyed. 
Mitchell  V.  Maupin,  3  T.  B.  Mon.  (Ky.)  185. 

Sec.  335.  Power  to  sell  land,  gave  authority  to  sell  on  credit, 
to  receive  payments,  etc. 
"Where  a  power  of  attorney  authorized  an  agent  to  sell  "cer- 
tain lands,"  or  any  part  or  parcel  thereof,  for  such  sum.  or 
price,  or  on  such  terms,  as  to  him  shall  seem  meet,  and  for 
me  and  in  my  name  to  make,"  etc.,  "deeds  for  the  same,  either 
with  or  without  covenants  of  warranty,"  it  was  held  that  the 
agent  had  authority  to  receive  payments,  and  a  payment  to 
him  was  a  good  payment  to  the  principal;  if  circumstances 
rendered  it  favorable  for  the  interest  of  his  principal,  he  might 
include  other  valuable  considerations  besides  money  in  the  con- 
sideration, and  might  sell  an  undivided  interest  in  the  prop- 
erty. Carson  v.  Smith,  5  Minn.  78;  Bahson  v.  Cox,  32  App. 
D.  C.  542.     Compare  Sec.  53. 

Sec.  336.  Power  to  sell  land  for  settlement,  not  violated  if 
shown  to  have  been  bought  on  speculation. 
A  power  of  attorney  to  sell  certain  lands  "for  the  purpose 
of  making  actual  settlement  thereof,  to  sign,  seal  and  deliver 
sufficient  deeds,"  etc.,  leaves  it  to  the  judgment  of  the  attor- 
ney to  determine  whether  the  purchasers  buy  for  the  purpose 
specified  in  the  power,  and  if  there  is  no  evidence  of  fraud  on 
the  part  of  the  purchaser  or  attorney,  the  conveyance  under 
the  power  will  be  valid,  although  it  should  afterward  appear 
that  the  land  was  purchased,  not  for  the  purpose  of  settlement 
but  on  speculation.     Spofford  v.  Hohhs,  29  Me.  148. 


PRINCIPAL   AND   AGENT.  229 

Sec.  337.  Power  to  sell  land  does  not  include  power  to  lease 
or  exchange  it. 
A  power  to  sell  land  does  not  include  power  to  lease  or 
exchange  it.  Trudo  v.  Andersori,  10  Mich.  357;  Lampkin  v. 
Wilson,  5  Heisk.  (Tenn.)  555;  Reese  v.  Medlock,  27  Texas, 
120.     See  references  under  Sec.  307. 

Sec.  337a.  Authority  of  agent  construed  to  authorize  contract- 
ing to  sell,  but  not  to  convey  the  real  estate. 
A  having  possession  of  certain  property  of  B,  under  a  pow- 
er of  attorney  to  sell  the  same  and  execute  the  proper  in- 
struments of  transfer,  afterward  gave  the  charge  of  the  same, 
with  deeds  and  papers  in  his  possession,  to  C.  A  thereupon 
wrote  to  C:  ''I  wish  you  to  manage  (my  property)  as  you 
would  if  it  were  your  own,  and  if  a  good  opportunity  offers 
to  sell  everything  I  have,  I  would  be  glad  to  sell.  It  may  be 
parties  will  come  into  San  Antonio  who  will  be  glad  to  pur- 
chase my  gas  stock  and  real  estate."  Held,  that  C  was  there- 
by authorized  to  contract  for  the  sale  of  the  real  estate,  but 
not  to  convey  it.     Lyon  v.  Pollock,  99  U.  S.  668. 

Sec.  337b.    Power  to  sell  does  not  include  power  to  give  an 
option. 

A  written  power  to  sell  land  does  not  include  power  to  give 
an  option,  unless  so  expressed.  Tihis  v.  Zirkle,  55  W.  Va. 
49,  46  S.  E.  701,  104  Am.  St.  R.  977.  See  references  under 
Sec.  307. 

Sec.  338.  Agent  buying  principal's  share  of  land  warrants 
for  less  than,  liable  for  full  value. 
Where  an  agent  received  land  warrants  to  locate  on  shares 
and  to  sell  the  land,  and  bought  up  his  principal's  share  of 
the  land  for  less  than  its  value,  without  informing  him  of  the 
price  for  which  a  part  of  the  land  had  been  sold,  it  was  held 
that  he  was  accountable  for  the  full  value  at  the  time  he  sold 
it.     Taijlor  v.  Knox,  1  Dana  (Ky.)   391.     See  also  Sec.  323. 

Sec.  339.    Authority  to  locate  and  survey  land  confers  no 
power  to  sell. 
An  authority  to  locate  and  survey  land  confers  no  power 
to  sell.     Moore  v.  Lockett,  2  Bibb.    (Ky.)   67.     See  references 
under  Sec.  307. 


230  AMEKICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  340.  Authority  to  sell  in  lots,  conferred  none  to  sell 
otherwise. 
Where  an  owner  of  land,  a  part  of  which  was  surveyed  in 
lots,  gave  his  agent  a  power  of  attorney  to  convey  the  same 
"in  lots  as  surveyed  by  B,"  a  conveyance  by  the  agent  to  G 
of  a  portion  of  the  land  which  liad  not  been  surveyed  was 
held  invalid  as  in  excess  of  the  authority  under  said  power. 
Eice  V.  Tavernier,  8  Minn.  248.  See  also  See.  307c,  and  ref- 
erence under  Sec.  307. 

Sec.  341.  Broker  not  liable  for  mutual  mistake  that  he  had 
authority  to  make  a  contract  of  sale. 
A  real  estate  broker  who  represents  that  he  has  authority 
to  sell  certain  land  is  not  liable  to  a  customer  for  the  conse- 
quences of  their  mutual  mistake  of  law  in  thinking  that  such 
authority  carried  with  it  the  right  to  make  a  contract  of  sale. 
McBeavy  v.  Eshelman,  4  Wash.  757,  31  P.  35. 

Sec.  342.     Agent  to  sell  land  has  no  right  to  receive  anything 
but  money  in  payment  for  principal. 

An  agent  for  the  sale  of  land  has  no  right  to  accept  any- 
thing but  money  for  liis  principal.  Bcvis  v.  Heflin,  63  Ind. 
129 ;  Mann  v.  Robinson,  19  W.  Va.  49.  See  reference  under 
Sec.  307. 

Sec.  343.  Broker  has  no  right  to  receive  Mexican  money  for 
earnest  money. 
A  real  estate  agent  who  is  authorized  to  accept  a  certain  sum 
as  earnest  money  is  not  thereby  given  power  to  accept  ^Mexican 
money.  Edwards  v.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W. 
48.    See  references  under  Sec.  307. 

Sec.  344.  Broker  given  minimum  price,  all  over  to  be  ^is  com- 
pensation for  selling,  need  not  tell  principal  what  land 
sold  for. 

The  owner  of  land  agreed  to  pay  a  broker  all  that  he  might 
obtain  for  the  land  above  a  minimum  price  per  acre  as  com- 
pensation, and  a  fixed  sum  in   addition;  the  broker  sold  the 


PRINCIPAL   AND   AGENT.  231 

land,  but  refused  to  state  for  how  much,  or  state  that  he  had 
sold  it  at  the  minimum  price.  Held,  that  he  was  not  deprived 
of  his  right  to  compensation.     Fulton  v.  Walters,  216  Pa.  56, 

()4  A.  860. 

Sec.  345.    Agent  knowing  of  defect  in  principal's  title  can  not 
himself  acquire  title. 

If  an  agent  discovers  a  defect  in  the  title  of  his  principal  to 
land  he  can  not  misuse  it  to  acquire  title  for  himself,  and,  if 
he  does,  will  be  held  as  a  trustee  of  the  title  for  his  principal. 
Ringo  v.  Binns,  10  Pet.  (U.  S.)  269;  Gardner  v.  Ogden,  22 
N.  Y.  327 ;  McMahon  v.  McGroiv,  26  Wis.  614 ;  Rogers  v.  Lock- 
eft,  28  Ark.  290.    See  also  See.  294. 

Sec.  346.     Broker  guilty  of  negligence  to  injury  of  principal, 
barred  commissions. 

Although  the  broker  finds  a  purchaser  who  is  willing  to  buy 
on  the  terms  imposed  by  the  principal,  yet  he  is  not  entitled 
to  a  commission  if  the  trade  fails  through  his  negligence,  and 
by  the  insertion  of  a  condition  which  the  agent  employing  him 
had  no  authority  to  direct.  Fisher  v.  Dynes,  62  Ind.  348.  And 
this  applies  as  well  in  the  case  of  an  exchange  lost  thereby  to 
the  principal.  Stuart  v.  Stuniph,  126  Ind.  580,  26  N.  E.  553; 
Harkness  v.  Briscoe,  47  Mb.  App.  196;Smye  v.  Groeshech 
(Tex.  Civ.  App.   '02),  73  S.  W.  972.     See  also  Sees.  325,  349. 

Sec.  347.  Owners  liable  for  negligence  to  prospective  tenants 
injured  while  examining  building. 
Where  the  owner  of  a  building  employs  brokers  to  obtain 
tenants  and  authorizes  the  broker  to  conduct  their  customers 
into  the  building,  he  is  liable  for  injuries  sustained  by  a  cus- 
tomer while  examining  the  building  in  company  with  the 
brokers  and  due  to  their  negligence.  Boyd  v.  U.  S.  Mtge.,  etc., 
Co.,  88  N.  Y.  S.  289,  94  App.  Div.  413. 

Sec.  348.     When  brokerage  contract  signed  without  reading 
will  not  be  set  aside  for  fraud. 
One  who  negligently  signs  a  brokerage  contract  without  read- 
ing it,  relying  on  statements  of  the  brokers  as  to  its  contents. 


230  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

is  not  entitled  to  have  it  set  aside  for  fraud,  when  the  signer 
had  no  right  to  rely  on  their  statements,  Kimmell  v.  Skelly, 
130  Cal.  555,  62  P.  1067.     Compare  Sec.  52. 

Sec.  349.  A  broker  whose  principal  suffers  loss  through  his 
negligence  is  liable  to  him  therefor. 
A  money  lender  to  whom  a  sum  of  money  is  given  to  invest 
is  bound  to  exercise  reasonable  skill  and  prudence;  by  his 
business  he  holds  himself  out  as  possessing  competent  skill  to 
determine  what  reasonable  care  and  prudence  requires;  if  he 
fails  to  exercise  these,  and  through  his  negligence  loss  occurs, 
he  is  liable  to  make  it  good.  McFarland  v.  McClees,  5  A.  50, 
1  Pa.  Cases  504 ;  Stewart  v.  Muse,  62  Ind.  385 ;  Whitney  v.  Mar- 
tine,  6  Abb.  (N.  Y.)  N.  C.  72  f Hindricks  v.  Brady  (S.  D.  Sup. 
'06),  108  N.  W.  332,  121  N.  W.  777;  Harlow  v.  Bartlett,  170 
Mass.  584,  49  N.  E.  1014;  Hindricks  v.  Brady  (S.  D.  Sup.  '09), 
121  N.  W.  777.     See  also  Sees.  325,  346,  260,  261,  271. 

Sec.  350.  Broker  departing  from  his  instructions  liable  for  loss 
arising  therefrom. 
A  broker  who  has  instructions  to  buy  for  his  principal  mort- 
gages, or  other  first-class  discount  paper,  who  violates  them  and 
invests  the  money  on  his  OM'n  judgment,  is  responsible  for  the 
consequent  loss  to  his  principal,  though  Civil  Code,  Art.  2987, 
declares  that  brokers  shall  not  be  responsible  "for  events  which 
arise  in  the  affairs  in  which  they  are  employed."  Soudieu  v. 
Faures,  12  La.  Ann.  746.    See  also  Sec.  229,  230. 

Sec.  351.  Brokers  not  liable  for  loss  on  forged  note,  where 
they  acted  in  good  faith  and  disclosed  their  principal. 
Note  brokers  are  not  personally  liable  for  a  loss  on  a  forged 
note  sold  by  them,  when  they  advised  the  vendee  at  the  sale 
that  they  were  acting  as  agents  and  disclosed  their  principal. 
Bailey  v.  Galbreath,  100  Tenn.  599,  47  S.  W.  84.  Compare 
Sec.  574. 

Sec.  352.     Broker  taking  a  note,  payable  at  his  office,  not  there- 
by authorized  to  collect. 
A  broker  who  negotiates  a  loan  and  receives  his  commission 
from  the  borrower,  taking  a  note  payable  at  his  office  to  the 


PRINCIPAL   AND   AGENT.  233 

lender,  is  not  authorized  to  receive  payments  on  such  note. 
Englert  v.  White,  92  Iowa,  97,  60  N..W.  224.  Compare  Sees. 
255,  257,  356. 

Sec.  353.    Where  broker  has  note  payable  at  his  office  the 
maker  is  warranted  in  paying  him. 

"Where  a  note  is  payable  at  the  office  of  a  broker,  it  is  the 
duty  of  the  maker,  in  the  absence  of  directions  from  the  holder 
to  the  contrary,  to  tender  payment  there,  and  finding  the  note 
in  the  broker's  possession,  the  maker  has  a  right  to  assume  that 
the  broker  has  authority  to  receive  payment  thereof.  Fifth 
Con.  Church  of  Wash.  v.  Bright,  28  App.  D.  C.  229.  ,See  also 
Sec.  357. 

Sec,  354.  Agent  to  receive  principal  and  interest  not  author- 
ized to  receive  payment  before  due. 
An  agent  merely  to  receive  the  interest  and  principal  of  a 
note  is  not  authorized  to  take  the  payment  of  the  principal 
prior  to  the  same  becoming  due.  Williams  v.  Pelley,  96  111. 
App.  346.     See  references  under  Sec.  307. 

Sec.  355.    Agent  to  collect  the  interest  not  authorized  to  collect 
the  principal. 

In  a  suit  to  cancel  a  deed  of  trust  on  the  ground  of  payment 
to  the  lender's  broker,  the  fact  that  the  broker  negotiated  the 
loan  and  collected  interest  on  the  loan  is  insufficient  to  make 
the  broker  the  agent  to  collect  the  principal,  where  the  lendef 
was  in  possession  of  the  security,  Heffereman  v.  Boteler,  87 
Mo.  App.  316.  Compare  Sec.  353,  357,  also  references  under 
Sec,  307. 

Sec,  356,    Agent  who  transacted  all  the  business  of  the  prin- 
cipal held  agent  to  collect  payment  of  note. 

Where  an  agent  transacted  all  the  business  witli  reference  to 
the  collection  of  the  principal  and  interest  of  debts  secured  by 
note  and  mortgage,  and  acted  as  the  agent  of  the  investor  in 
the  care  and  protection  of  the  security  and  to  deal  with  the 
security  as  the  agent  deemed  best,  with  the  full  knowledge  of 
the  principal,  payment  of  a  note  to  such  agent  was  payment 


234  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

to  the  principal.     Pochin  v.  Knoehel,  63  Neb.  768,  89  N.  W. 
264.     Compare  Sec.  255,  352. 

Sec.  357.    Debtor,  before  payment,  should  see  that  agent  has 
the  security. 

If  a  debtor  owing  money  on  a  written  security,  pays  or  settles 
with  another  as  agent,  it  is  his  duty,  at  his  peril,  to  see  tliat 
the  person  thus  paid  or  settled  with  is  in  possession  of  the 
security.  Corbett  v.  Weller,  27  Wash.  242,  67  P.  567.  See 
also  Sec.  353. 

Sec.  358.     Unless  broker  proves  he  could  have  made  a  sale  on 
revocation  entitled  to  recover  only  nominal  damages. 

In  an  action  for  damages  for  revocation  of  authority  to  sell 
land,  notliing  more  than  nominal  damages  can  be  recovered 
where  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Milligan  v.  Owen,  123  Iowa  285,  98 
N.  W.  792. 

Sec.  359.     Notice  to  agent  to  bind  the  principal  must  be  given 
while  acting  for  the  principal. 

Notice  to  an  agent  to  bind  the  principal  must  be  given  to 
the  agent  while  engaged  in  the  business  and  negotiations  of 
the  principal,  or  when  it  would  be  a  breach  of  trust  in  the 
agent  not  to  communicate  the  knowledge  to  his  principal.  Pep- 
per V.  George,  51  Ala.  190;  Pringle  v.  Dunn,  37  Wis.  449. 

Sec.  360.  Broker,  on  finding  customer  to  buy,  to  be  entitled 
to  commissions  must  give  principal  notice. 
Although  the  broker  finds  a  customer  before  the  principal 
sells  the  property,  he  is  not  entitled  to  a  commission  if  he 
delays  to  notify  the  owner  until  after  a  sale  is  made  by  the 
latter.  Bears  v.  Hyland,  65  IMinn.  150,  67  N.  W.  1148;  Barnett 
V.  Gluting,  3  Ind.  App.  415,  29  N.  E.  154,  927 ;  Burnett  v.  Ed- 
ling,  19  Tex.  Civ.  App.  711,  48  S.  W.  775. 

Sec.  361.    Notice  waived  where  principal  instructs  broker  to 
send  prospective  buyers  to  him. 
Where  a  real  estate  agent  is  instructed  by  the  principal  to 
send  persons  inquiring  about  the  property  to  the  latter,  the 


PRINCIPAL    AND   AGENT.  235 

agent  is  not  required  to  notify  the  principal  of  the  fact  that 
he  has  sent  persons  to  him,  in  order  to  recover  commissions  on 
a  sale  to  any  of  sucli  persons.  Clifford  v.  Meyer,  6  Ind.  App. 
633,  33  N.  E.  127,  34  N.  E.  23. 

Sec.  362.     Principal  can  not  reject  offer  through  broker,  and 
then  sell  and  escape  liability  for  commissions. 

Wliere  a  real  estate  agent  employed  to  sell  lands  introduces 
the  owner  to  a  purchaser  and  negotiations  are  commenced 
through  such  introduction,  the  agent  is  entitled  to  his  commis- 
sions though  a  sale  is  not  effected  at  first,  and  the  owner  de- 
clares the  transaction  off,  but  afterward  makes  the  sale  himself, 
without  the  aid  of  the  agent.  Scott  v.  Patterson,  53  Ark.  49, 
13  S.  W.  419 ;  Day  v.  Porter,  161  111.  235,  43  N.  E.  1073 ;  Somers 
V.  Wescott,  66  N.  J.  L.  551,  49  A.  462. 

Sec.  363.  Agent  authorized  to  make  a  written  can  not  make 
an  oral  contract. 
An  agent  must  closely  follow  the  instructions  of  his  prin- 
cipal ;  therefore,  an  agent  authorized  to  enter  into  a  ' '  written 
contract"  for  the  sale  of  land,  can  not  enter  into  a  verbal 
agreement  for  its  sale.  Berning  v.  Pierce,  5  Watts  &  S.  (Pa.) 
548.     See  references  under  Sec.  307. 

Sec.  363a.  Broker  not  entitled  to  commissions  on  contract 
not  in  conformity  with  authorization. 
Under  a  contract  providing  that  a  broker  on  securing  a  pur- 
chaser shall  receive  a  commission  "when  the  contract  for  the 
sale  is  signed,"  the  broker  is  not  entitled  to  the  commission 
on  securing  a  parol  offer  which  is  accepted  by  the  principal, 
where  no  contract  of  sale  is  signed,  and  the  person  making 
the  offer  fails  to  complete  the  purchase.  Schlansky  v.  Hillman, 
111  N.  Y.  S.'  696.     See  Sec.  556. 

Sec.  364.  Agent  acting  under  oral  authority  can  not  bind 
principal  by  written  covenants. 
An  agent  acting  under  parol  authority  can  not  bind  his 
principal  by  a  written  covenant  under  seal,  signed  with  the 
name  of  such  principal;  such  an  instrument  is  not,  in  any 
sense,  the  deed  of  the  principal,  unless  delivered  by  him.  Har- 
shaw  V.  McKesson,  65  N.  C.  688.    See  references  under  Sec.  307. 


CHAPTER  VI. 


SECTION. 

365.  Postponement   by    purchaser 

— Broker    earns    commis- 
sions. 

366.  Undisputed     possession     for 

years — Agent    authorized. 

367.  Words  "placed  in  hands  of" 

do  not  give  possession. 

368.  Agent  paying  money — Takes 

deed  to  self  absolutely. 

369.  Principal    taking    land    for 

cash  liable  to  broker. 

370.  Principal  should  pay  broker 

who    produced    purchaser. 

371.  Pool   to   divide   commissions 

bars   recovery   by   broker. 

372.  Agent  to  make  repairs,  not 

permanent     improvement. 

373.  Broker  can   not  retain  com- 

missions   from     purchase 
money. 

374.  Vendor  refusing  to  sell  liable 

for  commission. 


SECTION. 

374a.  Owner  can  not,  by  refusing 
to  convey,  avoid  liability 
to  broker  for  earned  com- 
missions. 

375.  When   refusing   to   sell   bro- 

ker not  entitled. 

376.  Other    property    taken   does 

not     deprive     broker     of 
commissions. 

377.  Broker     refused     land     for 

commission      may      take 
cash. 

378.  Originally  agreeing  to  take, 

on    refusal,    can    not    re- 
cover in  money. 

379.  Release    by   one    broker    left 

other  entitled   to   half  of 
remaining  land. 

380.  Eelease   of  vendee   does   not 

deprive  broker  of  fee. 


Sec.  365.     Postponement  by  prospective  purchaser,  broker  not 
defeated  of  commissions  by  sale  through  another. 
Where  a  broker  put  his  principal  in  communication  with  a 
prospective   purchaser    for   his   lot,    and   the    prospective    pur- 
chaser postponed  the  proposition  for  the  time  being,  but  after- 
ward went  to  another  real   estate   agent,   who   was   known   to 
have  authority  to  sell  the  lot,^and  made  the  purchase  from  him 
at  a  slightly   reduced  price,   it   was  held  that  the  first  agent 
having  set  on  foot  inquiries  and  negotiations  that  culminated 
in  the  sale  was  entitled  to  the  commission  therefor.     Cunliff  v. 
Hausman,  97  Mo.  App.  467,  71  S.  W.  368.     Compare  Sec.  370. 
230 


PRINCIPAL   AND    AGENT.  237 

Sec.  366.  Possession  undisputed  for  years  raises  presump- 
tion of  authority  of  agent  to  convey. 
After  many  years  undisputed  possession  of  real  or  personal 
property  under  a  conveyance  executed  by  a  person  as  agent, 
his  authority  will  be  presumed.  Stockbridge  v.  West  Stock- 
bridge,  14  Mass.  257,  261. 

Sec.  367.    Words  "placed  in  the  hands  of"  do  not  give  agent 
the  right  to  the  possession  of  the  property. 

The  expression  "placed  in  the  hands  of to  be  sold" 

used  in  a  contract  by  which  one  person  agrees  to  sell  land 
for  another  for  a  commission,  does  not  confer  on  the  agent  a 
right  to  the  possession  of  the  real  estate ;  it  is  a  familiar  form 
of  expression  used  to  indicate  the  appointment  of  an  agent  to 
sell  property.    Beeder  v.  Butler,  19  Pa.  Super.  Ct.  604. 

Sec;  368.  Agent  buying  for  principal,  paying  purchase  money 
and  taking  deed  to  himself,  holds  absolutely. 
Where  a  man  employs  an  agent  by  parol  to  buy  an  estate, 
and  the  agent  accordingly  buys  it,  and  no  part  of  the  considera- 
tion is  paid  by  the  principal  and  there  is  no  written  agreement 
between  tbe  parties,  the  principal  can  not  compel  the  agent  to 
convey  the  estate  to  him.  Dorsey  v.  Clarke,  4  Har.  &  J.  (Md.) 
551;  Pinnock  v.  dough,  16  Vt.  500.     Compare  Sec.  462. 

Sec.  369.     Principal  accepting  property  in  lieu  of  cash,  liable 
to  broker  for  commissions. 

A  broker  is  entitled  to  his  commissions  for  effecting  a  sale 
where  the  principal  without  oh.iecting  accepts  property  in  lieu 
of  cash.  Clark  v.  Allen,J25  Cai._276,.  57  P.  985;  Rabb  v.  John- 
son, 28  Ind.  App.  665,  63  N.  E.  580 ;  Grether  v.  McCormick,  79 
Mo.  App.  325;  Kennerly  v.  Somerville,  68  Mo.  App.  222;  S.  E. 
Crowley  Co.  v.  Myers,  69  N.  J.  L.  245,  55  A.  305;  Showaker  v. 
Kelly,  21  Pa.  Super.  Ct.  390;  Thornton  v.  Moody  (Tex.  Civ. 
App.  93),  24  S.  W.  331.     See  also  Sees.  275,  376. 

Sec.  370,    Principal  should  pay  the  broker  who  procured  the 
purchaser. 
"Where  real  estate  is  placed  for  sale  in  the  hands  of  two 
independent   brokers   under   an   arrangement   with   the   owner 


238  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

assented  to  by  both  of  them  that  the  commission  shall  be  paid 
to  the  one  selling  the  property,  it  is  the  duty  of  the  owner  to 
pay  the  commission  to  the  one  actually  producing  a  purchaser 
and  consummating  a  sale.  Daniels  v.  Columbia  Heights  Land 
Co.,  9  App.  Cas.  (D.  C.)  483,  See  Winans  v.  Jacques,  10  Daly 
(N.  Y.)  487. 

Sec.  371.     Agreement  between  brokers  to  divide  conmiissions 
bars  recovery  thereof. 
Where  defendant  employed  plaintiff  as  his  agent  to  effect  an 
(  exchange  of  defendant 's  property,  plaintiff  being  given  discre- 
I  tion  as  to  the  valuation  to  be  placed  on  the   property,  and 
I  plaintiff  and  the  agent  of  the  owner  with  whom  the  exchange 
i  was  made  agreed  to  pool  their  commissions  and  divide  the  pool, 
I  the  commissions  being  based  on  the  valuation,  plaintiff  was  not 
entitled  to  recover  commissions.     Quinn  v.  Burton,  195  Mass. 
277,  81  N.  E.  257;  Levy  v.  Spencer,  18  Colo.  532,  23  P.  415; 
Norman  v.  Roseman,  59  i\Io.  App.  682;  Armstrong  v.  O'Brien, 
83  Tex.  635,  19  S.  W.  268 ;  Shepard  v.  Hill,  6  Wash.  605,  34  P. 
159;  Carder  v.  O'Neill,  207  :\lo.  632,  106  S.  W.  10;  Plotner  v. 
Chillian   (Okla  Sup.    '08),  95  P.  775      If  the  principals  have 
knowledge  of  the  pool  and  do  not  object  thereto,  the  broker  is  i 
not  barred  recovery  of  commissions.    Kurinsky  v.  Lynch  (Mass.  ■ 
'09),  87  N.  E.  70;  Bearing  v.  Sears,  3  N.  Y.  S.  31.     Compare 
Alvard  v.  Cook,  174  Mass.  120,  54  N.  E.  499. 

Sec.  372.  Authority  to  an  agent  to  make  necessary  repairs, 
does  not  extend  to  permanent  improvements. 
If  one  employed  to  manage  property  for  its  owner  is  empow- 
ered to  make  such  repairs  only  as  are  necessary  to  preserve  and 
protect  the  property  from  ordinary  wear  and  tear,  he  can  not 
charge  the  owner  with  the  expense  of  permanent  improvements, 
or  of  rebuilding  after  a  fire.  Beckman  v.  Wilson,  61  Cal.  335; 
Planer  v.  Equitable  L.  A.  Soc.\'^.  J.  Ch.  '97),  37  A.  668.  See 
references  under  Sec.  307. 

Sec.  373.     Broker  can  not,  unless  authorized,  retain  commis- 
sions from  purchase  money. 

Where   real  estate  was  placed  in  the  hands  of  brokers  for 
sale,  and  they  purchased  it  from  the  agent  of  the  owner  with 


PRINCIPAL   AND   AGENT.  f  239 

power  to  sell,  such  agent  had  no  legal  right  to  retain  com- 
missions out  of  the  price  received,  in  the  absence  of  a  specific 
agreement  to  that  effect.  Knott  v.  Midkiff,  114  La.  234,  38 
S.  153.     See  also  Sec.  285,  and  references  under  Sec.  307. 

Sec.  374.    Vendor  by  refusal  to  sell,  liable  to  broker  for  com- 
mission, though  to  be  paid  by  customer. 

W.  employed  C.  &  R.  to  purchase  a  lot  for  him  upon  certain 
terms,  stipulating  that  the  compensation  of  the  latter  was  to  be 
deducted  from  the  purchase  money  going  to  the  vendor,  and 
was  in  no  event  to  be  paid  by  W.  Held,  that  W.  would  be 
liable  to  C.  &  R.  for  their  proper  fees  in  case  of  a  violation  of 
the  contract  by  W.  in  refusing  to  take  the  property.  Cowander 
v.  Waddingham,  2  Mo.  App.  551 ;  Bird  v.  Blackwell  (Mo.  App. 
'09),  115  S.  W.  487.    See  also  Sees.  197,  454. 

Sec.  374a.     Owner  can  not,  by  refusing  to  convey,  avoid  lia- 
bility to  the  broker  for  earned  commissions. 

An  owner  can  not,  by  refusing  to  convey,  avoid  liability  to 
the  broker  for  services  rendered  in  procuring  a  purchaser  while 
the  contract  of  employment  was  in  force.  Johnson  v,  Huher 
(Kan.  Sup.   '09),  103  P.  99. 

Sec.  375.  Principal  refusing  to  sell,  broker  not  entitled  to 
commission,  in  the  absence  of  an  established  custom. 
It  is  the  custom  of  land  agents  or  brokers  in  Wisconsin  to 
charge  and  receive  three  per  cent,  of  the  amount  of  the  pur- 
chase money.  K.  verbally  employed  P.,  a  land  broker,  to  sell 
for  him  certain  lands  at  a  fixed  price.  P.  found  a  person  who 
was  ready  and  willing  to  purchase  on  the  proposed  terms  when 
K.  refused  to  sell ;  P.  then  brought  suit,  declaring  upon  a  con- 
tract or  promise  of  K.  to  pay  three  per  cent,  of  the  purchase 
money  agreeably  to  usage  in  such  cases.  But  it  was  held  that 
such  rate  of  compensation  and  such  implied  contract  depended 
upon  the  consummation  of  the  sale.  Usage  in  order  to  enter 
into  and  become  a  part  of  the  law  of  contract  or  trade  must 
be  established  so  clearly  and  explicitly,  and  be  so  notorious  that 
the  party  must  be  presumed  to  know  it  and  to  have  contracted 
with  reference  to  it.  Power  v.  Kane,  5  Wis.  265.  See  Cavender 
V.  Waddingham,  2  Mo.  App.  551. 


240  {J         AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  376.  Broker  not  deprived  of  commissions  as  to  part  of 
consideration  paid  by  other  property. 
Wliere  a  broker  produces  an  acceptable  purchaser  in  the 
manner  and  under  the  agreement  stated,  he  will  not  be  de- 
prived of  his  commissions  because  the  principal  part  of  the 
consideration  for  the  land  by  the  buyer  is  other  real  estate 
which  he  owned.  Driesbach  v.  Rollms,  39  Kan.  268,  18  P.  187. 
See  also  Sec.  275,  369. 

Sec.  377.  Broker  agreeing  to  take  real  estate  for  compensa- 
tion, on  refusal  can  recover  in  cash. 
A  broker  who,  after  performance  of  his  contract,  agrees  to 
take  real  estate  as  compensation,  upon  the  principal's  refusal 
to  convey  the  realty,  is  entitled  to  recover  the  commission  in 
cash.  Morey  v.  Harvey,  18  Colo.  40;  31  P.  719.  Compare  Bai- 
ley V.  Gardner,  6  Abb.  N.  C.  (N.  Y.)  147. 

Sec.  378.     Broker  originally  agreeing  to  take  realty  for  com- 
pensation, on  refusal,  can  not  recover  in  money. 

The  plaintiff,  who  was  a  real  estate  broker,  agreed  before 
certain  commissions  were  earned  by  him,  to  take  payment  of 
them  in  lots  of  land,  and  afterwards  selected  the  lots  he  would 
take;  a  deed  thereof  was  duly  tendered  and  refused.  Held, 
that  he  could  not  recover  the  commission  in  money,  on  the 
ground  that  the  agreement  to  convey  the  land  was  void.  Bailey 
V.  Gardner,  6  Abb.  N.  C.  (N.  Y.)  147.  Compare  Morey  v. 
Harvey,  18  Colo.  40,  31  P.  719. 

Sec.  379.  Release  to  owner  by  one  broker  left  the  other  enti- 
tled to  one-half  of  remaining  land. 
An  owner  employed  a  broker  to  procure  a  purchaser  for  a 
tract  of  land;  the  broker,  with  the  owner's  consent,  employed  a 
third  person  to  assist  in  procuring  a  purchaser;  the  owner 
thereupon  executed  an  agreement  reciting  that  the  broker  and 
the  third  person  were  to  receive  any  amount  above  $17,000  for 
the  whole  tract;  a  purchaser  agreed  to  take  a  part  of  the  tract 
at  .$20,000;  the  owner  paid  the  broker  his  commissions,  re- 
ceiving a  receipt  in  full.  Held,  that  the  third  person  was  en- 
titled to  the  half  of  the  land  remaining  unsold,  but  not  to  any 


PRINCIPAL   AND   AGENT.  241 

part  released  to  the  owner  by  the  broker  by  his  receipt  in  full, 
and  objection  to  the  contract  sued  on,  on  the  ground  that  it 
was  witliin  the  statute  of  frauds,  comes  too  late  after  judgment. 
Eivart  V.  Young,  119  :\Io.  App.  483,  96  S.  W.  420.  Amendment 
allowable  in  Appellate  Court.  Baiisch  v.  McConnell,  13  Ohio 
Cir.  Ct.  640. 

Sec.  380.     Release  by  vendor  of  vendee  from  his  obligation 
does  not  deprive  broker  of  right  to  commissions. 

A  broker  has  earned  his  commissions  when  he  has  presented 
a  customer  whom  the  owner  accepts,  and  evidences  such  accept- 
ance by  entering  into  an  enforceable,  binding  contract;  the 
action  of  the  vendor  in  releasing  a  vendee  from  his  obligations, 
for  reasons  suiting  his  own  convenience,  can  not  affect  the 
right  of  the  broker  to  recover  his  commissions.  Packer  v. 
Skeppard,  127  111.  App.  598;  Ward  v.  Cobb,  148  Mass.  518, 
20  N.  E.  174. 


CHAPTER  VII. 


SECTION. 

381.  Agent  to  collect  rent  not  au- 

thorized to  employ  broker 
to  sell  land. 

382.  Broker    required    to    refund 

commissions  when  he  has 
acted  in  bad  faith. 

383.  Receipt  by  broker,  signed  by 

himself  as  agent,  bintls 
him  individually. 

384.  Where  agent  gives  receipt  in 

name  of  principal,  pur- 
chaser must  look  to  lat- 
ter. 

385.  Receipt    in   name   of   princi- 

pal— Purchaser  may  re- 
call before  money  is  paid 
to  him. 

386.  Creditor    authorized    to   col- 

lect rent  can  not  pay 
therefrom  his  own  debt. 

387.  Agent   to   collect    rent   must 

apply  the  same  as  directed 
by   principal. 

388.  Broker  acting  in  interest  of 

others,  not  entitled  to 
share  in  transaction  for 
principal. 


SECTION. 

389.  Broker  purchasing  property 

not  entitled  to  commis- 
sions for  its  sale. 

389a.  Agent  can  not  become  buyer 
of  principal's  property. 

389b.  When  employed  to  purchase, 
agent  can  not  sell  his  own 
property  to  principal. 

389c.  Circumstances  under  which 
agent  has  right  to  pur- 
chase the  property  for 
himself. 

390.  Broker    liable    for    fraud   of 

sub-agent. 

391.  Sub-agent      concealing     fact 

deprives  broker  of  right 
to  commissions. 

392.  Sub-agent  exceeding  author- 

ity  bars   commissions. 

392a.  Broker  selling  on  terms 
varying  from  instructions. 

392b.  Broker  departing  from  in- 
structions in  making 
sales. 

393.  Principal  not  liable  to   bro- 

ker's sub-agent. 

394.  Broker    not   liable    for    poor 

sale  by  sub-agent. 


Sec.  381.    Agent  to  collect  rent  not  authorized  to  employ  bro- 
ker to  sell  land. 
The  issue  was,  whether  one  executing  a  contract  on  behalf 
of  a  landowner  had  authority  so  to  do,  and  it  was  shown  that 
he  was  authorized  by  one  who  was  engaged  in  renting  property 
and  collecting  rents  for  the  landowner.    Held,  that  the  relations 
between  the  rent  agent  and  the  owner  were  not  sufficient  to 
242 


PRINCIPAL   AND   AGENT.  243 

warrant  an  inference  of  authority  to  empower  the  person 
executing  the  contract.  Topliff  v.  Shadwell,  64  Kan.  884,  67 
P.  545;  Hunn  v.  Ashton,  121  Iowa  265,  96  N.  W.  745.  See  also 
See.  392  and  reference  under  Sec.  307. 

Sec.  382.     Broker  required  to  refund  conmiissions  when  he  has 
acted  in  bad  faith. 

Wliere,  after  confirmation  of  sale,  the  owner  pays  to  the 
broker  the  commissions  agreed  on,  and  afterwards  discovers 
that  the  title  to  the  land  he  has  received  in  exchange  is  defec- 
tive, and  the  representations  made  as  to  the  situation  and 
value  are  false.  Held,  before  he  can  recover  from  such  broker 
the  commissions  so  paid  for  the  exchange,  he  must  further  show 
that  the  broker  acted  in  bad  faith,  and  concealed  from  him 
information  possessed  by  said  broker  in  regard  to  the  title, 
situation  and  value  of  the  land.  Lockwood  v.  Halsey,  41  Kan. 
166,  21  P.  98;  Volker  v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011.  See 
also  Sec.  323. 

Sec.  383.  Receipt  by  broker,  signed  by  himself  as  agent,  binds 
him  individually. 
Where  brokers,  making  a  sale,  give  the  vendee  a  receipt  for 
the  first  payment,  signed  by  themselves  as  agents,  in  which  it 
is  stated,  "it  is  agreed  that  in  case  the  title  appears  to  be  not 
good,  this  $1,000  will  be  refunded  by  us,"  they  are  personally 
liable  to  the  vendee,  in  case  of  failure  of  title,  even  though  the 
contract  of  sale  by  the  vendor  contains  a  similar  provision. 
Mead  v.  Altgeld,  136  111.  298,  26  N.  E.  388 ;  Reed  v.  Riddle,  48 
N.  J.  Ch.  359,  7  A.  487.     See  also  Sees.  76a,  168. 

Sec.  384.     Where  agent  gives  receipt  in  name  of  principal, 
purchaser  must  look  to  latter. 

Where  an  agent  receipts  for  money  in  the  name  of  1  is  prin- 
cipal, the  purchaser  must  look  to  the  latter  to  account  for  it, 
and  can  not  recover  from  the  agent,  whether  the  latter  has  de- 
livered it  to  his  principal  or  not.  McCuhhin  v.  Graham,  4  Kan. 
340;  Bamford  v.  Shuttleivorth,  11  Ad.  &  El.  (Eng.)  926;  Han- 
cock v.  Gomery,  58  Barb.  (N.  Y.)  490;  Colvin  v.  Holhrook,  2 
N.  Y.  126;  Costigan  v.  Newland,  12  Barb.  (N.  Y.)  1456.  See 
Sees.  385,  642b. 


244  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  385.     Receipt  in  name  of  principal,  purchaser  may  recall 
before  money  is  paid  to  him. 

If  a  party  wlio  has  paid  money  to  an  agent  for  the  use  of 
his  principal  becomes  entitled  to  recall  it,  he  may,  upon  notice 
to  the  agent,  recall  it,  provided  the  agent  has  not  paid  it  over 
to  his  principal.  Bamford  v.  Shuttleworth,  11  Ad.  &  El. 
(Eng.)  926;  Saddle  v.  Evans,  4  Burr,  1984;  1  Pars.  Con.  79; 
Story  on  Ag.,  Sec.  300.     Compare  Sees.  642b,  384. 

Sec.  386.     Creditor  authorized  to  collect  rent  can  not  pay  there- 
from  his  own  debt. 

A.  authorized  B.  to  collect  certain  rents,  and  directed  him  to 
apply  them,  (1)  to  the  payment  of  certain  demands  due  to 
third  persons,  and  then  to  the  payment  of  a  mortgage  held  by 
B.  B.  collected  the  rents,  which  did  not  amount  to  enough  to 
pay  the  preferred  demands,  and  appropriated  them  all  to  his 
own  claim.  In  an  action  by  A.  for  the  money.  Held,  that  B. 
could  not  set  off  his  own  demand.  Tagg  v.  Bowman,  108  Pa. 
St.  273.     See  references  under  Sec.  307. 

Sec.  387.     Agent  to  collect  rent  must  apply  the  same  as  di- 
rected by  principal. 

Where  defendant,  after  he  had  been,  by  an  instrument  in 
writing,  authorized  by  the  owner  of  land  to  collect  rents  and 
make  certain  disposition  thereof,  accepted  an  order  by  such 
owner  directing  him  to  pay  a  specific  portion  of  the  accrued 
rents  to  the  payee  therein,  this  was  a  modification  of  the  orig- 
inal agreement  and  binding  upon  defendant,  though  he  might 
otherwise  have  been  entitled  to  apply  such  rent  to  the  satisfac- 
tion of  claims  held  by  him.  Gray  v.  Barge,  50  N.  W.  1014, 
47  Minn.  498. 

Sec.  388.  Broker  acting  in  the  interest  of  others,  not  entitled 
to  share  in  transaction  negotiated  for  principal. 
An  agreement  that  a  land  agent  shall  have  an  interest  in 
transactions  negotiated  by  him,  does  not  entitle  him  to  share 
in  a  transaction  in  which  he  acted  for  other  persons  from  whom 
he  received  compensation  for  effecting  the  sale.  Home  v.  In- 
graham,  125  111.  198,  16  N.  E.  868.     See  also  Sees.     290,  314. 


principatj  and  agent.  245 

Sec.  389.  Broker  purchasing  property  not  entitled  to  commis- 
sions for  its  sale. 
An  agreement  by  a  real  estate  agent  to  divide  commission?} 
on  the  sale  of  certain  property  if  plaintiif  should  find  a  pur- 
chaser does  not  entitle  plaintiff  to  a  share  of  the  commission, 
where  he  and  a  third  person  purchased  the  property.  Morgan- 
stern  V.  Hill,  28  N.  Y.  S.  704,  8  Misc.  356 ;  Hess  v.  Gallagher, 
117  N.  Y.  S.  960.    See  also  Sec.  290. 

Sec.  389a.  Agent  can  not  become  the  buyer  of  the  principal's 
property,  even  when  sold  at  particular  price. 
An  agent  can  not  become  the  buyer  of  the  principal's  prop- 
erty, even  when  there  is  a  sale  at  a  particular  price.  Ruckman 
V.  Burgholz,  37  N.  J.  L.  437;  Armstrong  v.  Elliott,  29  Mich. 
485.  Compare  Sec.  40.  Welling  v.  Poulsen  (Mich.  Sup.  '10), 
125  N.  W.  373. 

Sec.  389b.  When  employed  to  purchase,  agent  can  not  sell  his 
own  property  to  principal. 
When  employed  to  purchase  an  agent  can  not  sell  his  own 
property  to  his  principal.  Deep  River,  etc.,  v.  Fox,  4  Ired. 
(N.  C.)  Eq.  61;  Banks  v.  Judah,  8  Conn.  145;  Matthews  v. 
Light,  32  Me.  305;  Copeland  v.  M.  Ins.  Co.,  6  Pick.  (Mass.) 
198 ;  Moore  v.  Mandlehaum,  8  Mich.  433 ;  Moore  v.  Moore,  5 
N.  Y.  256;  Sturdevant  v.  Pike,  1  Ind.  277;  Segar  v.  Edwards, 
11  Leigh  (Va.)  213;  Shannon  v.  Marmaduke,  14  Tex.  217; 
Cumberland,  etc.,  Co.  v.  Sherman,  30  Barb.  (N.  Y.)  553. 

Sec.  389c.  Circumstances  under  which  agent  had  a  right  to 
purchase  the  property  for  himself. 
Defendant  was  employed  to  effect  a  purchase  of  real  estate 
at  a  price  not  to  exceed  $51,000,  and  to  take  a  contract  there- 
for in  his  own  name,  to  be  assigned  to  plaintiff.  Held,  that 
after  using  all  reasonable  efforts  to  obtain  said  property  for 
plaintiff  at  the  limited  sum,  without  success,  he  had  a  right  to 
purchase  the  same  for  himself  at  the  sum  of  $52,000,  the  con- 
tract of  employment  fixing  the  law  of  the  case,  without  regard 
to  the  fiduciary  relations  of  the  parties.  Pearsall  v.  Hirch,  14 
N.  Y.  S.  305;  Clark  v.  Delano  (Mass.  Sup.  '10),  91  N.  E.  299. 


246  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  390.     Broker  employing  liable  for  fraud  of  sub-agent. 

A  broker  is  liable  for  the  fraud  of  a  sub-agent  employed  by 
him,  and  not  in  privity  with  the  broker's  principal.  Barnard 
V.  Coffin,  141  Mass.  37,  6  N.  E.  364.    See  also  Sec.  25. 

Sec.  391.     Sub-agent  concealing  fact  from  principal  deprived 
broker  of  right  to  commission. 

Where  a  sub-agent  conceals  from  the  principal  the  fact  that 
he  is  acting  for  the  agent,  the  latter  can  not  recover  a  com- 
mission. Mullen  V.  Bower,  22  Ind.  App.  294,  53  N.  E.  790. 
See  also  Sees.  25,  291. 

Sec.  392.     Sub-agent  exceeding  authority  can   not  bind   the 
principal  for  commissions!^ 

An  agent  to  receive  bids  for  property,  who  has  no  authority 
to  consummate  a  sale,  can  not  appoint  a  sub-agent  so  as  to 
bind  the  principal  for  commissions  on  a  sale  made  to  a  pur- 
chaser found  by  such  sub-agent.  Jones  v.  Brand,  106  Ky.  410, 
20  Ky.  L.  R.  1997,  50  S.  W.  679.    See  also  Sees.  381,  395. 

Sec.  392a.     Broker  selling  on  terms  varying  from  instructions. 

Where  a  broker  was  employed  to  sell  property  to  certain 
persons  on  a  payment  down  of  $17,500,  he  could  not  bind  his 
principal  by  accepting  a  part  payment  of  $10  only,  and  hence 
was  not  entitled  to  the  commissions.  Stoutenburg  v.  Evans 
(Iowa  Sup.  '09),  120  N.  W.  59.    See  references  under  See.  307. 

Sec.  392b.  Broker  departing  from  instructions  in  making  sale. 
A  broker  employed  to  find  a  purchaser  who  would  pay  the 
purchase  price,  and  in  addition  assume  such  assessments  as 
might  be  levied  against  the  property,  did  not  comply  with  the 
terms  given  him  so  as  to  be  entitled  to  the  commission,  where, 
in  his  agreement  with  the  proposed  purchaser,  it  was  provided 
that  the  purchaser  might  assum'e  the  assessments,  and  if  he 
did  deduct  them  from  the  price.  Kane  v.  Dawson,  52  Wash. 
411,  100  P.  837.     See  references  under  Sec.  307. 

Sec.  393.    Principal  not  liable  to  compensate  sub-agent  em- 
ployed by  broker. 

Ordinarily  the  principal  is  not  liable  to  compensate  a  sub- 
agent  employed  by  the  broker  to  sell  the  property,  although 


PRINCIPAL   AND   AGENT.  247 

authorized  to  take  any  steps  necessary.  Carroll  v.  Tucker,  21 
N.  Y.  S.  952,  2  Misc.  397;  Mason  v.  Clifton,  3  F.  &  F.  (Eng.) 
899;  J.  B.  Watkins  Ld.  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App. 
'06),  96  S.  W.  72;  Benham  v.  Ferris  (Mich.  Sup.  '10),  124 
N.  W.  538;  Sterling  v.  De  Laune  (Tex.  Civ.  App.  '07),  105 
S.  W.  1169.  See  also  Sec.  25.  Unless  he  has  ratified  the  ap- 
pointment of  the  sub-agent.  Warren  Com.,  etc.,  Co.  v.  B.  E. 
Co.,  120  Mo.  App.  432,  96  S.  W.  1038. 

Sec.  394.     Broker  not  liable  for  poor  sale  by  sub-agent. 

If  an  owner  of  land  employs  a  broker  to  sell  it,  and  the 
broker  employs  an  agent  in  the  place  where  the  land  is,  and 
the  broker  honestly  believes  an  offer  made  by  the  agent  to 
be  a  good  one,  and  so  states  to  the  owner,  who  accepts  the  offer 
in  reliance  on  what  is  told  him,  the  broker  is  not  liable  if  the 
offer  turns  out  to  have  been  a  poor  one,  he  having  used  rea- 
sonable care  in  the  matter.     Barnard  v.  Coffin,  188  Mass.  37. 


CHAPTER  VIII. 


SBX3TI0N. 

395.  Sub-agent  violating  instruc- 

tion. 

396.  Sub-agent   entitled   to   share 

of    one-half    commissions. 

397.  Agreement  with  sub-agent  to 

divide  fees  binding  on 
producing  customer. 

398.  One   employing  agent   liable 

for  commissions. 

399.  Secretly   learning   price   and 

sending  buyer  broker  does 
not   earn   commission. 

400.  Secretly     representing     both 

parties  bars  commissions. 

401.  Vendor  acts  in  bad  faith  by 

giving  commissions  to 
purchaser's  agent. 

402.  Broker  required  to   exercise 

the  skill  of  calling. 

403.  Broker    may    be    responsible 

for  sufficiency  of  security. 

404.  Broker     must     account     to 

principal  for  money  re- 
ceived— Statute  of  frauds 
no  protection. 


SECTION. 

405.  Broker  for  seller,  member  of 

purchasing  syndicate,  bars 
commissions. 

406.  Broker  giving  names  of  syn- 

dicate before  formed — 
Owner  selling  to  others 
bars  commissions. 

407.  Tenants    in   common   jointly 

liable  for  commissions. 

408.  Broker    selling    lower    than 

authorized  bars  commis- 
sions. 

409.  Terms   of   authorization  can 

not  be  varied. 

410.  Half  cash  complied  with  by 

sale  for  all  cash. 
410a.  Broker  authorized  to  sell  for 
half  cash   and   remainder 
on   time  can  not   sell  for 
all  cash. 

411.  Contract  modified,  rights  de- 

pend on  new. 

412.  Failing  to  disclose  best  terms 

bars  commissions. 
412a.  Broker     understating     price 
obtainable  liable  to  prin- 
cipal for  loss. 


Sec.  395.     Sub-agent  violating  instructions  in  obtaining  offer 
in  advance  of  bids. 

One  who  has  been  employed  by  the  agent  to  assist  him  in 
obtaining  bids  for  property,  was  not  acting  under  that  au- 
thority when  he  advised  others  to  make  the  principal  ah  offer 
in  advance  of  the  bid  obtained  by  the  agent  which  was  about 
to  be  accepted  by  the  principal.  Jones  v.  Brand,  106  Ky.  410, 
20  Ky.  L.  R.  1997,  50  S.  W.  679.    See  Sees.  381,  392. 

248 


PRINCIPAL   AND   AGENT.  249 

Sec.  396.  Sub-a^ent  ordinarily  entitled  to  share  of  one-half 
the  commissions. 
Where,  in  an  action  for  a  division  of  broker's  commissions, 
defendant  agreed  to  pay  one-half  of  the  commissions  earned  on 
the  sale,  and  defendant  admitted  receiving  $287.50,  it  was 
proper  for  the  court  to  assess  plaintiff's  damages  at  one-half 
of  such  sum.  McClearij  v.  Willis,  36  Wash.  676,  77  P.  1073; 
Bray  v.  Biggs,  110  :\lo.  App.  630,  85  S.  W.  116. 

Sec.  397.    Agreement  with  sub-agent  to  divide  fees  binding  on 
producing  purchaser. 

Where  plaintiff  was  authorized  by  the  owner  of  land  to  sell 
it,  and  agreed  to  share  the  commission  with  defendant  in  case 
the  latter  found  a  purchaser,  the  contract  was  unilateral,  bind- 
ing on  neither  party  until  defendant  found  a  purchaser.  Wefel 
V.  Stillman,  151  Ala.  249,  44  S.  203 ;  Casey  v.  Richards,  lO.l^P. 
36  (Cal.  App.  '09).    See  also  Sec.  20. 

Sec.  398.     One  employing  an  agent  to  find  a  purchaser  liable 
for  commissions. 

One  who  employed  a  broker  to  find  a  purchaser  for  real 
estate,  and  who  did  not  disclose  to  the  broker  that  he  was  acting 
as  an  agent,  and  did  not  disclose  his  principal  until  after  the 
broker  had  found  a  purchaser,  was  liable  to  the  broker  for  com- 
missions. Taubenblatt  v.  Galewski,  108  N.  Y.  S.  588.  See 
also  Sec.  222. 

Sec.  399.  Secretly  learning  price  of  property  and  sending 
buyer,  broker  not  entitled  to  commissions. 
Where  owners  of  real  estate  expressly  refused  to  employ  the 
plaintiff,  a  broker,  in  selling  their  property,  it  was  held  that 
the  mere  fact  that  the  plaintiff,  having  ascertained  the  price 
charged  for  the  property,  sent  a  purchaser,  to  whom  a  sale 
was  effected,  did  not  entitle  the  plaintiff  to  recover  commis- 
sions.   Pierce  v.  Thomas,  4  E.  D.  Smith,  354.    See  also  Sec.  443. 

Sec.  400.     Secretly  representing  both  parties  defeats  broker's 
right  to  commissions. 

A  real  estate  agent  who  secretly  undertakes  to  represent 
both    parties,    is   not   permitted   to   recover   commissions   from 


250  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

either.     Williams  v.  Moore-Gaunt  Co.,  3  Ga.  App.  756,  60  S.  E. 
372;  Hess  v.  Gallagher,  117  N.  Y.  S.,  960.     See  also  Sec.  314. 

Sec.  401.     Giving  commissions  to  purchaser's  agent  vendor  acts 
in  bad  faith,  but  contract  not  void. 

The  act  of  the  vendor  in  giving  secret  commissions  to  the 
vendee's  agent,  although  contrary  to  good  faith  and  the  policy 
of  the  law,  does  not  make  the  contract  of  sale  absolutely  void. 
Lightcap  v.  Nicola,  34  Pa.  Super.  Ct.  189.  Compare  Grant  v. 
Gold  Ex.  Sijn.,  12  B.  (Eng.)  233,  69  L.  J.  2  B.  150.  See  also 
Sec.  40. 

Sec.  402.     Broker  required  to  exercise  such  skill  as  is  employed 
by  persons  in  his  calling, 

A  broker  is  required  to  use  such  skill  as  is  ordinarily  pos- 
sessed and  employed  by  persons  of  common  capacity  engaged 
in  the  same  trade  or  business,  and  such  diligence  as  persons 
of  common  prudence  are  accustomed  to  use  about  their  own 
business  affairs.  Bronnenhurg  v.  Rinker,  2  Ind.  App.  391,  28 
N.  E.  568;  Shepherd  v.  Field,  70  111.  438;  McFarland  v. 
McClus,  1  Pa.  Cases,  504,  5  Atl.  50;  Mechem  on  Ag.,  Sec.  494. 

Sec.  403.  Broker  may  be  responsible  for  the  suflficiency  of  the 
security. 
Where  a  vendor  relies  on  his  broker  in  the  sale  of  property, 
he  must  exercise  reasonable  care  in  passing  on  the  sufficiency 
of  the  security  taken  for  the  price,  if  he  has  accepted  that  re- 
sponsibility.   Harloiv  v.  Bartlett,  170  Mass.  584,  49  N.  E.  1014. 

Sec.  404.     Broker  must  account  to  principal  for  money  received 
and  withheld,  and  statute  of  frauds  no  protection. 

Although  an  appointment  in  writing  is  necessary  to  consti- 
tute one  an  agent  for  the  sale  of  real  estate,  one  who  sells  real 
estate  as  the  owner's  agent  would  not  be  justified  in  retaining 
the  difference  between  the  amount  that  he  represented  to  liis 
principal  he  received  for  the  property,  and  the  amount  he 
actually  received,  because  his  appointment  was  not  in  writing. 
Merriman  v.  Thompson,  48  "Wash.  500,  93  P.  1075.  See  also 
Sec.  456. 


PRINCIPAL   AND   AGENT.  251 

Sec.  405.    Broker  for  seller,  member  of  purchasing  syndicate, 
bars  commissions. 

The  fact  that,  unknown  to  the  principal,  a  member  of  a  firm 
employed  to  sell  land  belongs  to  the  syndicate  to  which  the 
land  w^as  sold,  bars  the  first  from  recovering  commissions  for 
the  sale,  though  the  price  received  by  the  principal  was  fair  and 
all  that  he  demanded.  Hammond  v.  Bookivalter,  12  Ind.  App. 
177,  39  N.  E.  872.    See  also  Sec.  559. 

Sec.  406.     Broker  giving  names  of  syndicate  to  owners,  and  be- 
fore formed  latter  sells  to  others,  broker  barred  commis- 
sions. 
In  an  action  by  a  real  estate  broker  to  recover  commissions 
it  appeared  that  he  furnished  the  names  of  the  members  of  a 
purchasing  syndicate  to  the  owner,  but  the  syndicate  was  not 
fully  formed,  and  all  the  purchasers  were  not  then  known,  and 
it  did  not  appear  what  proportion  of  the  price  each  was  to 
pay,  and  the  owner  sold  to  others  before  the  syndicate  w'as 
fully  formed.    Held,  that  the  broker  could  not  recover  commis- 
sions, as  he  did  nbt  produce  a  person  ready  and  willing  to 
purchase.     Gerding  v.  Haskin,  141  N.  Y.  514,  36  N.  E.  601. 

Sec.  407.  Tenants  in  common  jointly  liable  for  broker's  com- 
missions. 
"Where  land  is  owned  by  two  tenants  in  common,  and  is 
placed  in  the  hands  of  one,  who  sells  it  through  a  broker,  the 
owners  are  jointly  liable  for  the  broker's  commissions.  Clif- 
ford v.  Meyer,  6  Ind.  App.  633,  34  N.  E.  23;  Schomherg  v. 
Auxier,  101  Ky.  292,  19  Ky.  L.  R.  548,  40  S.  W.  911. 

Sec.  408.  Broker  effecting  sale  on  lower  terms  than  author- 
ized, loses  commissions. 
A  broker  must  follow  the  instructions  of  his  employer ;  there- 
fore, one  who  is  promised  compensation  if  he  will  procure  a 
purchaser  for  property  on  certain  terms  can  not  claim  com- 
pensation for  effecting  a  sale  on  lower  terms,  he  having,  more- 
over, acted  in  part  in  the  buyer's  interest.  Williams  v.  McGraw, 
52  Mich.  480,  18  N.  W.  227;  McDonald  v.  Cabiness,  100  Tex. 
615,  98  S.  W.  943,  102  S.  W.  720;  Yarn  v.  Pelott,  55  Fla.  357, 
45  S.  1015. 


252  AMERICAN    LAW   REAL  ESTATE   AGENCY. 

Sec.  409.    Terms  of  authorization  can  not  be  varied  by  the 
broker. 

A  letter  authorizing  agents  to  sell  land  for  $2,200,  provided 
that  the  party  could  pay  $700  down,  and  the  balance  in  one, 
two  and  three  years,  does  not  authorize  them  to  sell  for  $1,000 
down  and  the  balance  in  one  and  two  years.  Speer  v.  Craig, 
16  Colo.  478,  27  P.  891;  BunJcs  v.  Pierce,  33  Colo.  440,  80  P. 
1036;  Rake  v.  Townsend  (Iowa  Sup.  '05),  102  N.  W.  499; 
Crosthwaite  v.  Lehus,  146  Ala.  525,  41  S.  853;  Engle  v.  Joh)i- 
wn,  34  Ind.  App.  593,  73  N.  E.  772.    See  also  Sec.  213. 

Sec.  410.    Terms  of  half  cash  complied  with  by  sale  for  all 
cash  on  delivery  of  deed. 

"Where  a  contract  authorizes  an  agent  to  sell  land  for 
"$15,000,  about  one-half  cash,"  but  is  silent  as  to  a  sale  for 
any  larger  sum,  or  as  to  receiving  more  than  one-half  cash,  or 
as  to  the  form  in  which  that  part  of  the  price  which  is  not 
cash  should  be  put,  a  sale  for  $15,000  cash  on  delivery  of  the 
deed  is  in  accordance  with  the  contract.  Witherell  v.  Murphy, 
147  Mass.  417,  18  N.  E.  215.    Compare  Sec.  410a. 

Sec.  410a.  Broker  authorized  to  sell  for  half  cash  and  re- 
mainder on  time  can  not  sell  for  all  cash. 
A  broker  employed  to  sell  land  for  one-half  cash  and  balance 
on  credit,  can  not  recover  a  commission  on  the  owner  refusing 
to  consummate  a  sale  for  all  cash,  unless  the  credit  required 
to  be  extended  w^as  so  short  as  to  make  it  in  effect  a  cash  pay- 
ment. Taylor  v.  Read  (Tex.  Civ.  App.  '08),  113  S.  W.  191. 
Compare  Sec.  410.    See  references  under  Sec.  307. 

Sec.  411.  Where  the  contract  of  employment  is  modified,  bro- 
ker's rights  depend  upon  the  new. 
The  terms  of  a  contract  of  employment  may  be  modified  by  a 
subsequent  agreement,  express  or  implied,  the  same  as  any 
other  contract,  in  which  case  the  broker's  right  to  compensa- 
tion depends  upon  the  modified  terms.  Cornell  v.  Hanna  (Kan. 
App.  '98),  53  P.  790;  Deford  v.  Shepard,  6  Kan.  App.  428,  49 
P.  795  ;.May  v.  Schuyler,  43  N.  Y.  Super.  Ct.  95. 


PRINCIPAL   AND   AGENT.  •  253 

Sec.  412.    Broker  failing  to  disclose  to  the  principal  the  best 
terms  loses  right  to  commissions. 

A  broker  employed  to  buy  or  sell  property  is  not  entitled  to 
compensation  where  he  fails  to  act  in  good  faith  and  disclose 
to  his  principal  the  best  terms  upon  which  the  transaction  can 
be  consummated.  Henderson  v.  Vincent,  84  Ala.  99,  4  S.  180; 
Morey  v.  Laird,  108  Iowa,  670,  77  N.  W.  835;  Carpenter  v. 
Fisher,  175  Mass.  9,  55  N.  E.  479 ;  Martin  v.  Bliss,  10  N.  Y.  S. 
886,  57  Hun,  157;  BaUinger  v.  Wilson  (N.  J.  Ch.  '02),  53  A. 
488.    See  also  Sec.  412a. 

Section  412a.  Broker  understating  price  obtainable  liable  to 
principal  for  loss. 
If  the  broker  employed  to  sell  or  exchange  property  under- 
states to  the  principal  the  best  price  or  arrangement  obtain- 
able, the  principal  is  entitled  to  recover  from  him  the  differ- 
ence between  that  obtained  and  that  which  might  have  been 
obtained.  Holmes  v.  Cathcart,  88  IMinn.  213,  92  N.  W.  956,  60 
L,  R.  A.  734.    See  also  Sees.  290,  412. 


CHAPTER  IX. 


SECTION. 

413.  Unless   clothed   with    power 

by  owner  no  one  can 
transfer  title  to  an- 
other's land. 

414.  Fraudulent    acts    of    broker 

may  give  rise  to  an  action 
of  tort. 
414a.  Proceedings    to   enforce    one" 
remedy  barred  any  other. 

415.  Unauthorized       negotiations 

of  broker  not  ratified  by 
sale  by  owner  to  cus- 
tomer. 

416.  Broker    accepting    valuation 

made  by  buyer — Princi- 
pal bound  thereby. 
416a.  Owner  bound  by  legitimate 
effect  of  his  language 
rather  than  his  own  un- 
derstanding of  its  import. 

417.  In  some  States  power  to  sell 

and  convey  land  includes 
power  to  give  covenants 
of  warranty. 


SECTION. 

418.  In  others  power  to  warrant 

specially  conferred. 

419.  Contract    for    sale    of    real 

estate  may  be  sold  with- 
out authority  conferred 
in  writing. 

420.  When  duty  of  principal  to 

collect     purchase     money 
notes. 
420a.  Duty     to     collect     purchase 
price  devolves  on  seller. 

421.  Presumption    after     revoca- 

tion that  broker  acts  for 
purchaser. 
421a.  One  receiving  inquiry  from 
broker  as  to  price  of  land 
may  infer  he  is  acting 
for  another. 

422.  Authority   to   sell    for    fixed 

sum  binding. 
422a.  Authority  to  sell  for  speci- 
fied sum  is  for  cash  only. 


Sec.  413.    Unless  clothed  with  power  by  owner  no  one  can 
transfer  title  to  another's  land. 

No  one  can  transfer  title  to  another's  property,  unless  the 
owner  has  clothed  him  with  authority,  real  or  apparent,  to  do 
so.     McGoldrick  v.  Willits,  52  N.  Y.  612. 

Sec.  414.     Fraudulent  acts  of  broker  may  give  rise  to  an  action 
of  tort. 

If  a   broker  employed   to   sell   property  understates  to  his 
principal  the  price  received  by  him  and  appropriates  the  differ- 
ence must  account  to  him  therefor.    Collins  v.  McClurg,  1  Colo. 
254 


PRINCIPAL  AND  AGENT.  255 

App.  348,  29  p.  299 ;  Helherg  v.  Nickol,  149  111.  App.  249,  37 

N.  E.  63;  Gornwali  v.  Foord,  96  111.  App.  366;  Bassett  v. 
Rogers,  165  Mass.  377,  43  N.  E.  180;  Stearns  v.  Hockhrunn,  24 
Wash.  206,  64  P.  165 ;  Love  v.  Hass,  62  Ind.  255 ;  Henshaw  v. 
Wilson,  46  111.  App.  364.  And  in  addition,  his  fraudulent  con- 
duet  may  subject  him  to  an  action  for  a  breach  of  the  con- 
tract. Barnard  v.  Coffin,  141  Mass.  27,  6  N.  E.  364.  Or  to  an 
action  of  tort.  Emmons  v.  Alvord,  177  Mass.  466,  59  N.  E.  126. 
See  also  Deceit,  Sec.  298. 

Sec.  414a.    Proceeding  to  enforce  one  remedy  barred  any  other. 

In  an  action  by  some  of  the  members  of  a  syndicate  which 
own  an  equitable  interest  in  property,  the  legal  title  to  which 
is  held  by  another  in  trust  for  all  the  members,  for  the  amount 
received  by  the  holder  of  the  legal  title  from  a  broker  em- 
ployed by  him  to  procure  a  purchaser  of  the  property,  as  a 
part  of  the  commission  to  be  retained  by  the  broker,  on  the 
ground  of  a  fraudulent  agreement  between  the  holder  of  the 
legal  title  and  the  broker  for  a  division  of  the  commissions, 
bars  an  action  against  the  broker  for  a  rescission  of  the  con- 
tract of  employment  and  a  reclamation  of  the  commission  re- 
tained by  the  broker.  Hechscher  v.  Blinton  (Va.  Sup.  '10), 
66  S.  E.  859. 

Sec.  415.    Unauthorized  negotiations  of  brokers  not  ratified  by 
the 'Sale  by  owner  to  customer. 

Defendants  employed  plaintiff  to  procure  a  purchaser  for 
a  ranch,  and  subsequently  revoked  the  agency,  and  in  the 
course  of  subsequent  correspondence  continually  insisted  that 
the  ranch  was  not  for  sale,  and  that  if  defendants  should  sell 
the  ranch  they  would  not  recognize  any  claim  for  commissions 
which  plaintiff  might  make.  Held,  that  the  subsequent  sale  of 
the  land  by  defendants  to  a  purchaser  with  whom  plaintiff 
had  negotiated,  was  not  a  ratification  of  that  unauthorized  act 
so  as  to  entitle  plaintiff  to  commissions.  Loving  Co.  v.  Hes- 
perian Cattle  Co.,  176  Mo.  330,  75  S.  W.  1095. 

Sec.  416.    Broker  accepting  valuation  made  by  buyer,  princi- 
pal bound  thereby. 
Where  an  agent  negotiating  a  sale  of  the  interest  in  an  es- 
tate accepts  the  valuation  of  the  property  made  by  the  intend- 


256  AMCmCAN  LAW  REAL  ESTATE  AGENCY. 

ing  purchaser,  and  fails  to  examine  the  county  records,  or  take 
other  steps  to  inform  himself  of  the  real  value,  as  advised  to 
do,  he  will  be  held  to  have  acted  on  his  own  judgment,  and 
no  relief  will  be  granted  to  his  principal  if  it  turns  out  that 
the  lands  are  more  valuable  than  they  were  represented  to  be. 
Herron  v.  Herron,  32  N.  W.  407,  71  Iowa,  428.  See  also,  Sec. 
25.     . 

Sec.  416a.    Owner  bound  by  legitimate  effect  of  his  language 
rather  than  his  own  understanding  of  its  import. 

Where  the  language  used  by  the  owner,  in  conference  with 
the  broker,  and  the  attending  circumstances,  w^ere  such  as  to 
justify  the  broker  in  believing  that  an  extension  of  time  in 
which  to  make  the  sale  was  given,  and  he  acted  on  such  belief, 
the  owner  is  bound  by  the  legitimate  effect  of  his  language 
and  acts,  rather  than  by  his  own  understanding  of  their  im- 
port.    Hancock  v.  Staceij  (Tex.  Sup.   '10),  125  S.  W.  884. 

Sec.  417.  In  some  States  power  to  sell  and  convey  land  in- 
cludes power  to  give  covenants  of  warranty. 
In  some  jurisdictions  the  power  to  sell  and  convey  land  in- 
cludes authority  to  convey  it  with  covenants  of  general  war- 
ranty. Taggart  v.  Stanherry,  2  McLain  (U.  S.),  543;  Peters 
V.  Farnsworth,  15  Vt.  155;  Venada  v.  Hopkins,  1  J.  J.  Marsh. 
(Ky.)  285,  293;  Le  Boy  v.  Beard,  8  How.  (U.  S.)  451.  See 
next  section.     See  Sec.  43. 

Sec.  418.  In  some  jurisdictions  the  power  to  sell  with  cove- 
nants of  warranty  must  be  specially  conferred. 
A  broker  employed  to  sell  real  property  has  ordinarily  no 
power  to  effect  a  sale  with  warranty,  and  if  he  does  it  is  such  a 
departure  from  his  authority  that  the  contract  will  not  bind 
the  principal.  Yazel  v.  Palmer,  88  111.  597 ;  Tudro  v.  Cush- 
man,  2  Wis.  279;  Nixon  v.  Hyserott,  5  Johns.  Ch.  (N.  Y.)  58; 
Coleman  v.  Garrigues,  18  Barb.  (N.  Y.)  60;  Malone  v.  McCul- 
lough,  15  Colo.  460,  24  P.  1040;  Stengel  v.  Sargeant  (N.  J. 
Eq.  '08),  68  A.  1106.  See  preceding  Section.  Compare  Sec. 
328k. 


PRINCIPAL  AND  AGENT.  257 

Sec.  419.  Broker  may  sell  a  contract  for  the  sale  of  real 
estate  without  written  authority. 
Penal  Code,  Sec.  640d,  requiring  written  authority  to  au- 
thorize a  broker  to  sell  real  estate  for  clients,  does  not  apply 
to  the  employment  of  brokers  to  sell  a  contract  for  the  sale 
of  real  estate  at  a  higher  price  than  that  which  the  vendees 
had  agreed  to  pay.  Levy  v.  Trimble,  94  N.  Y.  S.  3,  47  Misc. 
394. 

Sec.  420.  It  is  the  duty  of  the  principal  to  collect  purchase 
money  notes  on  which  commissions  depend. 
Brokers  procured  purchasers  for  a  mine,  who  offered  one- 
half  cash  and  their  unsecured  notes  for  the  balance ;  these 
terms  were  unsatisfactory  to  the  owner,  but  he  agreed  with  the 
brokers  to  sell  on  these  terms  if  they  would  wait  for  one-half 
of  their  commissions  until  the  purchase  money  notes  were  col- 
lected. Held,  that  the  owner  owed  the  brokers  the  duty  to 
make  reasonable  efforts  to  collect  the  notes  as  they  matured, 
but  the  mere  failure  to  bring  suit  on  the  notes  was  not  a  lack 
of  diligence,  in  the  absence  of  showing  they  were  insolvent  so 
that  the  notes  could  not  be  collected  by  suit.  Glade  v.  Ford, 
131  Mo.  App.  164,  111  S.  W.  135. 

Sec.  420a.    Duty  to  collect  purchase  pi  ice  devolves  on  seller. 

Though  a  broker's  contract  of  employment  provided  that  he 
should  not  receive  commissions  unless  the  deal  was  closed, 
and  that  the  commissions  were  payable  from  the  proceeds  of 
the  sale,  the  broker,  in  the  absence  of  a  contract  to  that  effect, 
was  not  required  to  see  that  the  purchase  price  was  paid  be- 
fore he  could  receive  commissions,  as  the  duty  to  collect  the 
price  devolved  on  the  seller,  and  not  on  the  broker.  Pinkerton 
V.  Hudson  (Ark.  Sup.  '08),  113  S.  W.  35. 

Sec.  421.     Presumption  by  continuing  negotiations  after  revo- 
cation that  agent  acts  for  purchaser. 

Wh^re  a  broker  is  notified  by  a  vendor  that  he  will  pay  no 
commissions,  and  thereafter  continues  the  negotiations  for  a 
sale,  it  is  presumed  that  he  is  the  agent  of  the  purchaser  and 
looks  to  him  for  his  commissions.  Wolverton  v.  Tuttle,  51 
Ore.  501.  94  P.  961. 


258  AMERICAN   LAW  REAL   ESTATE   AGENCY. 

Sec.  421a.    One  receiving  an  inquiry  from  a  broker  a^  to  the 
price  of  land  may  infer  he  is  acting  as  agent  for  another. 

"Where  defendant  knew  that  plaintiff  was  a  real  estate  bro- 
ker, he  could  infer,  upon  receiving  an  inquiry  from  plaintiff 
as  to  the  price  of  property,  that  the  latter  was  acting  as  agent 
for  another  in  seeking  to  purchase.  Rodman  v.  Manning  (Or. 
Sup.   '09),  99  P.  657,  1135. 

Sec.  422.    Authority  to  sell  for  specific  sum,  did  not  authorize 
part  cash  and  mortgage. 

A  broker's  authority  to  sell  land  for  a  specific  sum,  did  not 
authorize  an  agreement  to  sell  for  a  part  of  the  price  in  cash, 
the  balance  to  be  represented  bj''  a  mortgage  on  the  premises. 
Stengel  v.  Sergeant  (N.  J.  Ch.  '08),  68  A.  1106.  See  also 
Sec.  141. 

Sec.  422a.    Authority  to  sell  for  specified  sum  is  for  cash  only. 

A  broker  authorized  to  sell  real  estate  for  a  specified  sum, 
for  a  commission  in  excess  of  that  sum,  has  authority  to  make 
a  cash  sale  only.  Slayback  v.  Wetzel  (Mo.  App.  '09),  123  S. 
W.  982. 


PART  IV. 

COMMISSIONS  AND  COMPENSATION 
OF  AGENTS. 

259 


CHAPTER  I. 


SECTION. 

423.  Broker  entitled  to   commis- 

sions on  quantity. 
423a.  Broker    entitled    to    agreed 
commissions  and  not  lim- 
ited   to    computation    on 
lesser  sale  price. 

424.  Broker     interfering    in    an- 

other's transaction. 

425.  Broker   agreeing  to   look   to 

purchaser     for      commis- 
sion. 
425a.  Broker     employed     to     pur- 
chase not  entitled  to  com- 
missions from  seller. 

426.  Broker  not  entitled  on   sale 

at  less  than  price. 

427.  Broker  not  entitled  as  con- 

tract not  a  lease. 

428.  Immaterial   variance   in    de- 

scription does  not  de- 
prive. 

428a.  Wrong  description  insuffi- 
cient to  defeat  broker's 
commissions. 

428b.  What  circumstances  fall 
short  of  a  variance. 

429.  Broker    procuring    loan    for 

less  accepted  entitled. 


SECTION. 

430.  Broker  to  procure  loan  en- 

titled on  finding  lender. 

431.  Broker     failing     to     report 

finding  lender  not  enti- 
tled. 

432.  Where      broker      negotiated 

with  two,  sale  to  one 
bars. 

433.  Broker    not    entitled    where 

sale  void  by  statute. 

434.  Principal     refusing     to     ap- 

praise broker  entitled. 

435.  Purchaser  who  knew  length 

of  lot  refusing,  bars. 

436.  Where      vendor      repudiates 

tender  not  necessary. 

437.  Broker  unsuccessful  with  F. 

sale  by  owner  to  F.  and 
others,  bars  commission. 

438.  Broker    not    entitled    where 

party  does  not  show  good 
faith. 

439.  Unless  exclusive  broker  not 

entitled  on  sale  by  an- 
other agent. 

440.  Broker   entitled   on    sale   by 

owners  to  proportionate 
commissions  on  share  of 
two  tenants  in  common. 


Sec.  423.  Broker  entitled  to  commissions  on  quantity  con- 
tracted for,  although  less  owned. 
Where  the  terms  of  sale  are  fixed  by  the  vendor,  in  accord- 
ance with  which  the  broker  introduced  a  proposed  purchaser, 
and  upon  the  procurement  of  the  purcha.ser  the  vendor  volun- 
tarily reduces  the  price  of  the  property,  or  the  quantity,  or 
otherwise  changes  the  terms  of  sale  as  proposed  to  the  broker, 

261 


262  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

80  that  a  sale  is  made,  or  terms  or  conditions  are  offered  which 
the  proposed  buyer  is  ready  and  willing  to  accept,  the  broker 
will  be  entitled  to. his  commissions  at  the  rate  specified  in  his 
agreement  with  his  principal.  Stewart  v.  Mather,  32  Wis.  344. 
Contra,  Hoefling  v.  Hamhleton,  84  Tex.  517,  19  S.  W.  689. 

Sec.  423a.  Broker  entitled  to  agreed  commissions  and  not 
limited  to  computation  on  lesser  sale  price. 
A  promise  to  pay  a  broker  for  selling  land  a  commission 
"on  the  price  I  may  accept  if  sold  through  your  agency," 
means  a  commission  on  the  price  agreed  to  be  paid  for  the 
property,  and  not  only  on  the  amount  actually  paid.  Condict 
V.  Cowdrey,  5  N.  Y.  S.  187,  23  N.  Y  St.  600,  57  N.  Y.  Super. 
Ct.  66. 

Sec.  424.  Broker  interfering  in  another's  transaction  not  en- 
titled to  commissions. 
A  broker  on  being  offered  a  commission  to  find  a  purchaser 
for  certain  lands,  presented  the  matter  to  one  who  took  it  un- 
der advisement  for  a  time,  and  then,  wishing  to  signify  his 
acceptance,  sought  the  broker  at  his  office,  but  not  finding  him, 
and  learning  that  the  owner  was  at  the  office  of  a  rival  broker 
went  there,  where  the  purchase  was  completed.  Held,  that 
the  former  was  entitled  to  the  commission.  Jenks  v.  Nobles, 
42  111.  App.  33.     See  also  Sec.  444. 

Sec.  425.    Broker  agreeing  to  look  to  the  purchaser  for  com- 
missions bound  by  his  election. 

Plaintiff,  a  real  estate  broker,  was  employed  by  defendant 
to  sell  or  exchange  for  him  a  farm  and  four  lots,  the  farm  at 
$5,000,  or  the  whole  at  $13,000,  and  agreed  to  pay  plaintiff 
commissions  therefor  at  the  rate  of  two  and  one-half  per  cent. ; 
a  purchaser  M'as  introduced  to  defendant  by  plaintiff,  and  an 
exchange  finally  agreed  on,  at  the  valuation  of  $13,000;  but 
the  defendant  insisted  that  the  purchaser  should  pay  the  plain- 
tiff's commissions,  and  the  purchaser  called  on  plaintiff  and 
told  him  that  it  had  been  agreed  between  defendant  and  him- 
self that  he  (the  purchaser)  was  to  pay  plaintiff's  commis- 
sions, and  that  the  exchange  had  been  made  at  a  valuation  of 
$5,000,  whereupon  plaintiff  agreed  to  look  to  the  purchaser 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  263 

for  his  commissions,  and  wrote  a  letter  to  defendant  to  that 
effecc,  whereupon  the  exchange  was  made.  Held,  that  if  the 
defendant  acted  on  plaintiff's  letter,  and  was  guilty  of  no 
fraud,  it  would  be  immaterial  what  the  purchaser  said  to  plain- 
tiff, as,  if  the  purchaser  had  deceived  plaintiff,  defendant  was 
not  responsible  therefor.  McClave  v.  Maynard,  35  How.  Pr. 
(N.  Y.)   313.     See  also  Sec.  588. 

Sec.  425a.  Broker  employed  to  purchase  not  entitled  to  com- 
missions from  seller. 
Plaintiff,  a  real  estate  broker,  being  employed  by  B.,  a  per- 
son desirous  of  purchasing  a  residence,  to  find  for  him  such 
a  place  as  he  desired,  introduced  him  to  defendant,  who  had 
a  place  to  sell,  and  informed  defendant  that  if  B.  purchased 
the  property  defendant  would  have  to  pay  plaintiff  the  usual 
commission.  Defendant  had  negotiations  with  B.  in  regard  to 
a  sale  of  the  property,  but  failed  to  come  to  any  agreement 
as  to  terms,  and  defendant  then  sold  the  property  to  his 
brother,  who,  eleven  days  thereafter,  sold  it  to  B.  Held,  that 
in  the  absence  of  any  evidence  to  show  that  the  sale  by  de- 
fendant to  his  brother,  and  the  subsequent  conveyance  by  him 
to  B.,  was  done  to  defraud  plaintiff  of  his  commissions,  he 
could  not  recover  them  from  defendant.  It  seems  that  plain- 
tiff, having  been  employed  by  B.,  any  agreement  made  by 
plaintiff  with  defendant  for  commissions  was  void  as  a  fraud 
upon  B.,  in  the  absence  of  proof  that  B.  was  apprised  of  such 
agreement,  and  assented  thereto.  Bennett  v.  Kidder,  5  Daly 
(N.  Y.)  512. 

Sec.  426.  Broker  not  entitled  to  commissions  on  contract  at 
set  price  and  sale  at  less. 
A  broker  hired  to  sell  property  at  a  certain  price  can  not 
recover  commissions  for  effecting  a  sale  at  a  lower  price,  and 
the  appellate  court  held  that  the  case  was  properly  taken  from 
the  jury.  Williams  v.  McGrmv,  52  ^lich.  480,  18  N.  W.  227; 
Brown  v.  Adams  (R.  I.  Sup.  '08),  69  A.  601. 

Sec.  427.    Broker  not  entitled  to  commissions,  as  contract  se- 
cured was  not  a  lease. 
Plaintiffs,  real  estate  brokers,  were  employed  by  defendant 
to  procure  a  .lease  of  certain  real  estate  owned  by  her;  they 


264  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

negotiated  an  agreement  for  a  lease,  the  terms  of  which  she 
could  not  perform,  nor  could  she  enforce  it  against  the  other 
parties;  and  procured  her  to  execute  the  same  upon  the  assur- 
ance that  it  was  effectual.  Held,  that  an  action  was  not  main- 
tainable to  recover  commissions,  that  to  earn  the  same  they 
were  required  to  procure  a  lease  or  a  valid  agreement  for  one. 
Crombie  v.  Waldo,  137  N.  Y.  129,  32  N.  E.  1042,  33  N.  E. 
744;  Montgomery  v.  Knickerbocker,  50  N.  Y.  S.  128,  27  App. 
Div.  117;  Ward  v.  Zhoroivski,  63  N.  Y.  S.  219,  31  Misc.  66; 
Armstrong  v.  O'Brien,  83  Tex.  635,  19  S.  W.  268;  Hale  v. 
Kumler,  85  Fed.  161,  29  C.  C.  A.  67,  rehearing  denied  172  N. 
Y.  646 ;  Latvs  &  Bradford  v.  Schmidt,  80  0.  S.  108,  88  N.  E. 
319.     See  also  Sec.  812,  and  references  under  Sec.  307. 

The  owner  of  real  estate  agreed  with  brokers  that  if  'they 
would  make  a  lease  of  the  property,  in  accordance  with  h«r 
proposition,  she  would  pay  the  commission  stipulated.  The 
proposition  was  to  lease  perpetually,  lessees  to  have  the  privi- 
lege of  purchase  at  the  end  of  twenty  years,  and  required 
the  lessees  to  erect  a  modern,  first-class  building,  to  secure  the 
erection  of  which  they  were  to  deposit  $20,000,  and,  in  the 
event  of  failure  the  fund  so  deposited  to  go  to  the  owner,  but 
if  the  building  should  be  completed,  then  to  the  lessees,  and 
it  was  provided  that  the  proposition  should  be  binding  on  the 
payment  of  $1,000,  to  be  credited  on  the  first  quarterly  pay- 
ment of  rent.  Held,  that  the  mere  procurement  by  the  bro- 
kers of  a  party  who  accepted  the  owner's  proposition,  but 
neither  did,  nor  offered  to  do  anything  further,  the  owner 
not  having  herself  defaulted  in  any  respect,  did  not  entitle 
the  brokers  to  the  commission.  Laws  v.  Schmidt,  80  Ohio  St. 
108,  88  N.  E.  319 ;  Bradford  v.  Schmidt,  80  Ohio  St.  108,  88 
N.  E.  319. 

Sec.  428.    Immaterial  variance  in  description  did  not  deprive 
broker  of  commissions. 

"Where  plaintiff  made  a  contract  by  which  he  was  to  have 
the  exclusive  right  for  twenty  days  to  effect  a  sale  of  defend- 
ant's farm,  and  the  contract  of  purchase  which  he  secured  de- 
scribed the  land  as  containing  so  many  acres  on  which  defend- 
ant resided,  lying  partly  in  one  and  partly  in  another  town 


COMMISSION   AND    COMPENSATION    OF   AGENTS.  265 

named,  and  bounded  but  on  three  sides,  and  concluded  by 
stating  that  it  was  formerly  known  as  the  "Van  Allen  farm;" 
whereas  it  is  designated  as  the  "Owen's  place,"  in  defendant's 
contract,  the  variance  is  immaterial,  as  the  description  is  suf- 
ficient to  enable  the  land  to  be  located,  and  it  is  not  void  for 
uncertainty,  and  the  broker  is  entitled  to  commissions.  Schultz 
V.  Griffln,  8  N.  Y.  S.  R.  332,  reversed  121  N.  Y.  294,  24  N.  E. 
480.     See  also  Sees.  59,  428a. 

Sec.  428a.  Wrong  description  insufficient  to  defeat  broker's 
right  to  commissions. 
An  owner  of  land  listed  it  with  a  real  estate  broker  to  be 
sold  within  a  given  time,  at  a  stated  price,  agreeing  to  pay 
the  broker  ten  per  cent,  if  he  sold  it,  and  five  per  cent,  if  the 
owner  sold  it,  which  he  did  within  the  specified  time.  It  ap- 
peared that  the  number  of  the  lot  was  by  mutual  mistake  er- 
roneously stated  in  the  contract,  but  the  land  was  otherwise 
clearly  described.  Held,  that  the  mere  mistake  as  to  the  num- 
ber of  the  lot  was  insufficient  to  defeat  a  recovery  by  plaintiff. 
Tyler  v.  Justice,  120  Ga.  879,  48  S.  E.  328.  See  also  Sees.  59, 
428. 

Sec.  428b.    What  circumstances  fell  short  of  a  variance. 

Where,  in  an  action  by  a  broker  for  commissions,  the  com- 
plaint alleged  that  he  was  employed  to  procure  a  purchaser 
of  real  estate  for  a  commission,  on  condition  that  plaintiff 
would  at  once  advise  the  purchaser  to  give  the  seller  a  con- 
tract for  the  construction  of  a  building  on  the  premises,  but 
that,  unless  the  seller  got  such  contract  the  plaintiff  should 
receive  nothing,  and  that  the  purchaser  awarded  to  the  owner 
such  a  contract,  and  the  broker  testified  that  the  owner  in- 
formed him  that,  if  lie  induced  the  purchaser  to  award  to  the 
owner  a  contract  to  erect  a  building,  a  specified  sum  would  be 
paid  as  commissions,  otherwise  no  commission  would  be  paid, 
the  subsequent  testimony  of  the  broker  that  nothing  was  said 
as  to  his  advising  the  purchaser  to  build,  did  not  create  a 
variance  between  the  pleading  and  the  proof,  but,  at  most, 
only  varied  the  terms  of  the  contract  relating  to  the  same 
transaction,  and  the  owner  was  not  misled  thereby.  Oeiger  v. 
Kiser  (Colo.  Sup.  '10),  107  P.  267. 


266  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  429.  Broker  securing  loan  for  a  less  amount,  which  is  ac- 
cepted, entitled  to  commissions. 
In  an  action  upon  an  agreement  to  pay  a  broker  a  commis- 
sion for  obtaining  a  loan,  it  appeared  that  a  loan  for  a  less 
amount  was  obtained,  and  at  first  accepted,  but  subsequently 
declined  by  the  principal  as  being  insufficient  for  his  purpose. 
Held,  that  the  service  had  been  rendered  and  the  commission 
was  due,  in  the  absence  of  any  usage  among  New  York  brokers 
to  receive  no  compensation  unlesss  the  matter  was  consum- 
mated.    Van  Lieu  v.  Byrnes,  1  Hilton  (N.  Y.),  133. 

Sec.  430.    Broker  to  procure  a  loan  entitled  to  commissions  on 
finding  a  lender. 

A  broker  employed  to  effect  a  loan  is  entitled  to  his  commis- 
sions when  he  has  found  a  lender  who  has  the  money  and  who 
approves  of  the  security,  unless  his  rights  are  varied  by  special 
contract;  there  is  always  an  implied  condition  that  the  bor- 
rower will  show  a  good  title.  Phister  v.  Gove,  48  Mo.  App. 
455;  Calvm  Philip  &  Co.  v.  Laylow  (Wash.  Sup.  '09),  104 
P.  610;  Rockwell  v.  Hurst,  13  N.  Y.  S.  290;  Budd  v.  Z oiler, 
52  Mo.  238;  Steele  v.  Lippman,  115  N.  Y.  S.  1099;  Steele  v. 
Bumore,  117  N.  Y.  S.  189.  , 

Sec.  431.  Broker  failing  to  report  finding  lender  not  entitled 
to  commissions. 
Where  an  application  for  a  loan  is  made  to  a  broker,  who 
secures  a  party  willing  to  make  the  loan,  but  does  not  so  no- 
tify the  applicant,  and  after  the  time  has  elapsed  within  whiclt 
the  broker  was  to  place  the  loan,  the  applicant,  without  knowl- 
edge of  the  steps  taken  by  the  broker,  secures  a  loan  from  the 
same  person  with  whom  the  latter  had  arranged  to  place  it, 
the  broker  is  not  entitled  to  commissions.  Biddiso7i  v.  John- 
son, 50  111.  App.  173.     See  also  Sees.  235,  312,  471. 

Sec.  432.    Where  broker  negotiated  with  two  jointly,  sale  by 
owner  to  one  bars  commissions. 

Plaintiff  employed  as  a  broker  by  defendant  to  sell  certain 
real  estate,  but  not  having  the  exclusive  right  to  sell,  carried 
on  negotiations  with  two  persons  for  a  purchase  by  them  to- 


COMMISSION    AND   COMPENSATION   OF    AGENTS.  267 

gether,  but  did  not  succeed  in  effecting  a  sale;  afterward,  one 
of  such  persons  offered  defendant  the  same  price  for  which 
plaintiff  was  authorized  to  sell,  which  defendant  accepted;  it 
did  not  appear  that  plaintiff  had  had  negotiations  with  such 
person  for  a  separate  purchase  by  him,  or  that  such  offer  by 
him  was  the  result  of  his  negotiations  with  plaintiff.  Held, 
that  plaintiff  could  not  recover  commissions  on  the  sale.  Arm- 
strong V.  Wann,  29  Minn.  126,  12  N.  W.  345;  Nadler  v.  Men- 
schel,  110  N.  Y.  S.  384.     See  also  See.  437. 

Sec.  433.  Broker  not  entitled  to  commissions  where  contract 
void  by  statute  of  frauds. 

A  real  estate  broker  is  not  entitled  to  commissions,  where 
a  sale  to  his  customer  is  not  consummated,  and  the  executory 
contract  of  sale  is  not  binding  under  the  statute  of  frauds. 
Wilson  V.  Mason,  158  111.  304,  42  N.  E.  134.    See  also  Sec.  602. 

A  real  estate  agent  is  not  entitled  to  commissions  on  an  in- 
valid sale.     Volker  v.  Fisk  (N.  J.  Eq.  '09),  72  A.  1011. 

Sec.  434.  Principal  capriciously  refusing  to  appraise  can  not 
deprive  broker  of  commissions. 

Where  a  broker  is  employed  to  negotiate  for  a  house  his 
compensation  to  be  paid  for  in  diamonds,  no  particular  dia- 
monds being  particularly  identified,  and  the  broker  finds  a 
house  and  the  principals  agree  as  to  the  price,  the  broker  can 
not  be  deprived  of  his  compensation  by  his  employer's  capri- 
cious refusal  to  agree  to  any  mode  of  appraising  the  diamonds. 
West  V.  Lynch,  1  City  Court  R.  (N.  Y.)  225.    See  also  Sec.  454. 

Sec.  435.  Where  purchaser  refusing  to  take,  knew  the  real 
length  of  lot,  broker  barred  commissions. 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
earned,  on  the  ground  that  the  purchaser  refuses  to  take  the 
property  on  account  of  false  representations  of  the  length  of 
the  lot,  a  verdict  for  defendant  is  clearly  right,  Avhere  it  ap- 
pears that  the  purchaser  knew  the  exact  length  of  the  lot  be- 
fore he  agreed  to  purchase  it.  Sloman  v,  Bodwell,  24  Neb. 
790,  40  N.  W.  321.     See  also  Sees.  183,  451. 

A  broker  familiar  wdth  a  lot  was  employed  to  procure  a  pur- 


268  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

chaser.     The  owner  stated  to  the  broker  that  the  lot  had  a 

frontage  of  168  feet  on  the  street;  a  purchaser  procured  by 
the  broker  refused  to  complete  the  purchase  because  the  front- 
age was  only  165  feet.  Held,  that  the  broker  was  not  entitled 
to  commissions,  since  he  was  employed  to  procure  a  purchaser 
for  the  lot  as  it  was,  and  the  fact  that  the  owner  told  the  pro- 
posed purchaser  during  the  negotiations  that  the  frontage  was 
168  feet,  did  not  affect  the  contract  of  brokerage.  Keough  v. 
Meyer,  111  N.  Y.  S.  1,  127  App.  Div.  273.     See  also  Sec.  451. 

Sec.  436.    Where  vendor  signifies  repudiation  of  contract  ten- 
der not  necessary  for  broker  to  recover  commissions. 

Wliere  a  contract  of  sale  has  been  repudiated  by  the  vendor, 
proof  of  tender  of  performance  by  the  vendee  is  not  necessary, 
in  an  action  by  the  broker  against  the  vendor  for  his  com- 
missions on  the  sale,  when  it  is  shown  that  it  would  not  have 
been  of  any  avail  if  made.  Harwood  v.  Diemer,  41  Mo.  App. 
48. 

Sec.  437.    Where  broker  unsuccessfully  negotiated  with  F,  sale 
by  owner  to  P  and  others  bars  commissions  to  broker. 

Where  a  broker's  contract  for  the  sale  of  land  required  not 
only  the  finding  of  a  purchaser  but  a  sale  to  him  by  the  bro- 
ker, and  it  was  specially  agreed  that  no  commission  should  be 
paid  unless  a  sale  was  actually  made  by  the  broker,  he  could 
not  recover  commissions  for  a  sale  made  to  F.  and  others  by 
the  owner,  because  he  had  submitted  the  land  to  F.  alone,  who 
was  unwilling  to  purchase  on  the  terms  fixed  by  the  owner. 
Bur-ch  V.  Hester  &  Laivhorn  (Tex.  Civ.  App.  '08),  109  S.  W. 
399;  English  v.  Wm.  George  Realtij  Co.  (Tex.  Civ.  App.  '09), 
117  S.  W.  996.    See  also  Sec.  432. 

Sec.  438.  Broker  not  entitled  to  commissions  where  party  to 
make  exchange  does  not  show  good  faith. 
A  contract  of  exchange  negotiated  by  a  broker,  incompletely 
executed  by  the  broker's  principals,  does  not  show  willingness 
to  perform  by  the  alleged  purchaser,  where  the  form  of  the 
contract  and  the  whole  of  the  signatures  thereto  show  that 
some  of  the  conditions  upon  which  the  purchaser  insisted  could 
not  be  complied  with.     Schulte  v.  Meehan,  133  111.  App.  491. 


COMMISSION    AND   COMPENSATION    OF^    AGENTS.  269 

Sec.  439.     Unless  broker  has  exclusive  agency  not  entitled  to 
commissions  on  sale  by  another  agent. 

A  broker  who  is  unsuccessful  in  effecting  a  transaction  in 
behalf  of  the  principal  is  not  entitled  to  commissions  upon 
the  success  of  another  broker,  unless  the  principal  gives  him 
an  exclusive  agency  or  promises  to  pay  him  a  commission  even 
though  another  agent  is  successful.  Long  v.  Herr,  10  Colo. 
380,  15  P.  802;  Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218; 
Letshaw  v.  Moore,  53  Kan.  234,  36  P.  342;  Walton  v.  A^  0., 
etc.,  R.  Co.,  23  La.  Ann.  398;  Ward  v.  Fletcher,  124  Mass. 
224;  Danville  v.  Comstrock,  110  Mich.  693,  69  N.  W.  79; 
Thuner  v.  Kanter,  102  Mich.  59,  60  N.  W.  299;  Emherson  v. 
Deane,  46  How.  Pr.  236 ;  Owens  v.  Wehrle,  14  Pa.  Super.  Ct. 
536 ;  Powell  V.  Anderson,  15  Daly,  219,  4  N.  Y.  S.  706 ;  Wilson 
v.  Alexander  (Tex.  Sup.  '92),  18  S.  W.  1057;  Hennings  v. 
Parsons,  108  Va.  1,  61  S.  E.  866.     See  also  Sec.  445. 

Sec.  440.     Broker  entitled  on  sale  by  owners  to  proportionate 
commissions  on  share  of  two  tenants  in  common. 

Where  a  broker  had  the  exclusive  control  of  property  for 
the  purpose  of  sale  so  far  as  two  of  the  several  tenants  in 
common  could  confer  it,  and  was  attempting  to  sell  when  the 
owners  sold,  he  can  recover  a  commission  on  the  two  tenants' 
share  of  the  purchase  money.  Goldsmith  v.  Case,  80  S.  C.  341, 
61  S.  E.  555. 


CHAPTER  II. 

SECTION.  SECTION. 

441.  Broker   preventing   competi-       444.     Interference      by      breaking 

tive  bidding  not  entitled  into   negotiations    started 

to  commissions.  by  another  agent. 

442.  Broker   cannot   charge   com-       445.     The    first    broker    who    suc- 

missions      against     bene-  ceeds    is    entitled    to   the 

ficiary.  •  commission. 

443.  Volunteers.  446.     Broker  who  was  the  procur- 

ing cause   of   the   sale   is 
entitled  to  compensation. 

Sec.  441.  Broker  preventing  competitive  bidding  not  entitled 
to  commissions. 
A  broker  employed  by  a  guardian  of  an  incompetent  person 
to  sell  real  estate  is  not  entitled  to  commissions  if  he  offered 
money  to  another  bidder  to  induce  him  to  refrain  from  bid- 
ding on  the  same  against  the  purchaser  procured  by  the  bro- 
ker, and  without  the  guardian's  knowledge  represented  the 
purchaser,  and  worked  to  secure  the  real  estate  for  him  at  the 
lowest  possible  price.  Trees  v.  Millikin  (Ind.  App.  '08),  85 
N.  E.  123.     See  also  Sec.  217. 

Sec.  442.     Broker  can  not  charge  commissions  against  benefi- 
ciary. 

Recovery  of  a  real  estate  broker's  commissions  for  procur- 
ing a  purchaser  can  not  be  charged  against  one  who  merely 
had  a  beneficial  interest  in  the  property  without  authority  to 
sell,  and  who,  so  far  as  she  acted  in  negotiations  resulting  in 
the  sale,  referred  the  broker  to  others  who  alone  could  convey. 
Kirivan  v.  Pizer,  109  N.  Y.  S.  739. 

Sec.  443.    Volunteers. 

A  mere  volunteer,  though  he  brings  the  parties  together  and 
is  the  efficient  means  of  procuring  a  sale,  a  lease,  or  an  ex- 
270 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  271 

change  of  property,  is  not  entitled  to  a  commission.  Albert 
Booth  Cohn  v.  Lee,  117  N.  Y.  S.  550;  Viley  v.  Pettit,  96  Ky. 
576,  16  Ky.  L.  R.  650,  29  S.  W.  438;  Merrill  v.  Latham,  8 
Colo.  App.  263,  45  P.  524;  Witherbee  v.  Walker,  42  Colo.  1, 
93  P.  1118;  Keener  v.  Earrod,  2  Md.  63;  Fordtran  v.  Stower, 
113  S.  W.  631  (Tex.  C.  A.  '08)  ;  Ballentine  v.  Mercer,  130  Mo. 
App.  605,  109  S.  W.  1037;  Sharp  v.  Hoopes  (N.  J.  Sup.  '06), 
64  A.  989 ;  McClosky  v.  Thompson,  56  N.  Y.  S.  1076,  26  Misc. 
735;  Tinkham  v.  Knox,  18  N.  Y.  S.  433;  Henderson  v.  Sonne- 
baum,  30  Pa.  Sup.  Ct.  182;  Samuel  v.  Liickenbach,  205  Pa.  St. 
428,  54  A.  1091.  Contra,  Kinder  v.  Pope,  106  Mo.  App.  536, 
80  S.  W.  315. 

No  recovery  can  be  had  for  services  volunteered  upon  the 
chance  of  obtaining  future  employment.  Such  services  are 
mere  gratuities.     Mechem  on  Ag.  Sec.   600. 

In  the  absence  of  a  special  contract,  finding  a  purchaser  is 
not  enough  to  entitle  to  a  commission  where  no  sale  was  made. 
Haase  v.  Schneider,  98  N.  Y.  S.  587,  112  App.  Div.  336 ;  Pierce 
v.  Thomas,  4  E.  D.  Smith,  354;  Harris  v.  Reynolds  (N.  D.  Sup. 
'07),  114  N.  W.  369.  Nor  does  receiving  money  as  part  pay- 
ment on  a  contract  of  sale  of  real  estate,  and  giving  the  broker 
a  receipt  therefor,  make  him  the  recipient's  agent.  Appeal  of 
Jacquett,  3  Walk.   (Pa.)   13. 

Sec.  444.  Interference  by  breaking  into  negotiations  started 
by  another  agent. 

A  broker  interfering  with  another's  transaction  is  not  en- 
titled to  a  commission.  Reynolds  v.  Tompkins,  23  W.  Va. 
229 ;  Jenks  v.  Nobles,  42  111.  App.  33.  Where  a  broker  to  sell 
advertises  the  property  and  shows  it  to  a  person,  and  another 
broker  buys  the  property  and  conveys  it  to  that  person,  the 
first  broker  is  entitled  to  recover  commissions.  Elemendorf  v. 
Golden,  37  Wash.  664,  80  P.  264. 

Where  a  broker,  through  a  letter  improperly  reaching  him, 
obtains  information  and  directs  the  seeker  to  the  owner,  he  is 
not  entitled,  to  commissions  on  an  exchange  of  properties  af- 
terwards effected.  Hamilton  v.  Gillander,  49  N.  Y.  S.  663, 
26  App.  Div.  156.  Where  a  broker,  through  a  mistake  in 
telephoning  the  owner,  telephoned  another  broker  bearing  the 


272  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

same  name,  who  thereupon  effected  a  sale,  the  latter  was  not 
entitled  to  commissions.  Shapiro  v.  Shapiro,  103  N.  Y.  S.  305, 
117  App.  Div.  817.  Where  a  broker  was  negotiating  with  a 
customer  whom  he  introduced  to  the  owner,  and  the  latter  told 
the  customer  he  could  buy  cheaper  through  another  agency, 
and  a  sale  was  effected  through  the  latter,  the  former  agent 
was  entitled  to  the  commission.  Gilmore  v.  Freshaur,  126  Mo. 
App.  299,  102  S.  W.  1107. 

A  broker  who  fails  to  procure  a  purchaser  on  the  terms  pro- 
posed and  another  interferes  and  sells  on  different  terms,  or 
at  the  same  price,  is  not  entitled  to  commissions.  Carlson  v. 
Nathan,  43  111.  App.  364;  Armes  v.  Cameron,  19  D.  C.  435; 
Mears  v.  Stone,  44  111.  App.  444;  Tinsley  v.  Scott,  69  111.  App. 
352;  Livezy  v.  Miller,  61  Md.  336;  Crouming shield  v.  Foster, 
169  Mass.  237,  47  N.  E.  879 ;  Wolff  v.  Rosenberg,  67  INIo.  App. 
403;  Northcupp  v.  Diggs,  128  Mo.  App.  217,  106  S.  W. 
1123;  Chandler  v.  Sutton,  5  Daly  (N.  Y.),  112;  Powell  v. 
Anderson,  15  Daly,  219,  4  N.  Y.  S.  706;  Eolly  v.  Townscnd, 
2  Hilt.  (N.  Y.)  34;  De  Zavola  v.  Ttozaliner,  84  N.  Y.  S.  969; 
Friedman  v.  Havemeyer,  56  N.  Y.  S.  97,  37  App.  Div.  518; 
Felman  v.  O'Brien,  51  N.  Y.  S.  309,  23  Misc.  341;  Powell  v. 
Lamh,  1  N.  Y.  S.  431 ;  Rae  v.  Kane,  106  N.  Y.  S.  47,  121  App. 
Div.  494;  Land  Mtge.  BJc.  v.  Hargis  (Texas  Civ.  App.  '02),  70 
S.  W.  352. 

Wliere  a  broker  put  his  principal  into  communication  with 
a  prospective  purchaser,  who  proposed  making  a  proposition, 
but  later  bought  the  property  through  another  agent  at  a 
slightly  reduced  price,  the  first  agent  having  set  on  foot  in- 
quiries and  negotiations  that  culminated  in  a  sale,  was  en- 
titled to  the  commissions.  Cnnliff  y.  Hansmann,  97  Mo.  App. 
467,  71  S.  W.  368. 

A  broker  is  entitled  to  commissions  where  the  principal  in- 
terferes with  the  customer  and  concludes  the  transaction  him- 
self.    Williams  V.  Bishop,  11  Colo.  App.  378,  53  P.  239. 

A  broker  who  finds  a  purchaser  and  negotiates  with  him  to 
sell  the  land,  and  when  the  sale  is  nearly  completed,  another 
broker  meets  the  customer,  who  tells  him  of  the  offer  made  by 
the  first  broker,  and  with  full  knowledge  of  the  first  broker's 
negotiations  the  second  broker  sells  the  property  for  a  less  sum 


COMMISSION    AND    COMPENSATION    OF   AGENTS.  273 

to  the  customer,  and  the  owner,  ignorant  of  the  first  broker's 
negotiations,  concludes  the  transaction,  the  owner, is  liable  for 
commissions  to  the  first  broker.  Reynolds  v.  Tompkins,  23  W. 
Va.  229 ;  Lewis  v.  McDonald,  83  Neb.  694,  120  N.  W.  207.  See 
also  Sec.  446. 

The  principal  can  not  interfere  with  negotiations  started  by 
the  broker,  revoke  his  authority,  and  sell  the  land  to  his  cus- 
tomer, or  through  another  broker,  and  escape  liability  for  com- 
missions to  the  first  broker,  the  customer  not  having  abandoned 
the  idea  of  purchasing.  Day  v.  Porter,  161  111.  235,  43  N.  E. 
1073 ;  Gillet  v.  Corum,  7  Kan.  156 ;  Corning  v.  Calvert,  2  Hilt. 
(N.  Y.)  56;  Biidd  v.  Zoller,  52  ]\ro.  238;  Newton  v.  Conness 
(Tex.  Civ.  App.   '08),  106  S.  W.  892. 

Sec.  445.     The  first  broker  who  succeeds  is  entitled  to  the  com- 
mission. 

Where  two  or  more  brokers  are  employed,  ordinarily  the 
first  who  succeeds  in  actually  producing  a  purchaser  and  con- 
summating a  sale  is  entitled  to  full  commissions.  Whewell  v. 
McLernon  Realty  d:  Const.  Co.,  120  N.  Y.  S.  72;  Daniels  v. 
Columbia  H.  Land  Co.,  9  App.  Cas.  (D.  C.)  483;  O'Toole  v. 
Dolan,  129  Cal.  471,  62  P.  30;  Glenn  v.  Davidson,  37  Md.  365; 
McCan  v.  Bailey,  60  Mo.  App.  456 ;  Jennings  v.  Trummer,  52 
Ore.  149;  96  P.  874;  Glasscock  v.  Vanfleet,  100  Tenn.  603, 
46  S.  W.  449;  Yarhorough  v.  Creager  (Tex.  Civ.  App.  '03), 
77  S.  W.  645 ;  Osier  v.  Moore,  8  Brit.  Col.  115 ;  Frinck  v.  Gil- 
bert (Wash.  Sup.   '09),  101  P.  1088. 

In  some  jurisdictions  the  first  broker  who  brings  the  parties 
together  and  induces  the  seller  and  the  purchaser  to  enter  into 
the  contract,  is  entitled  to  the  commission.  Higgins  v.  Miller, 
109  Ky.  209,  58  S.  W.  580,  22  Ky.  L.  R.  702 ;  Baker  v.  Thomas, 
33  N.  Y.  S.  613,  12  Misc.  432;  De  Zavola  v.  Rozaliner,  84  N. 
Y.  S.  969.    Dalke  v.  Sirijer  (Wash.  Sup.  '09),  105  P.  1031. 

Where  property  is  placed  with  several  brokers  the  first  who 
procures  a  contract  of  sale  and  obtains  part  payment  of  the 
purchase  money,  is  entitled  to  the  commission.  Eggleston  v. 
Austin,  27  Kan.  245;  Stewart  v.  Woodward,  7  Kan.  App.  633, 
53  P.  148;  O'Toole  v.  Dolan,  129  Cal.  471,  62  P.  30;  Livezy  v. 
Miller.   61   Md.   336;   McCann  v.   Bailey,   60   Mo.   App.   456; 


274  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Yarhorough  v.  Creager  (Tex.  Civ.  App.  '03),  77  S.  W.  645; 
Bray  v.  Chandler  18  C.  B.  (Eng.)  718,  86  E.  C.  L.  718;  Mur- 
ray V.  Curry,  7  C.  &  P.  (Eng.)  584,  32  E.  C.  L.  771. 

Where  property  is  placed  witli  a  real  estate  agent  for  sale 
and  a  sale  is  brought  about  through  his  agency,  he  is  entitled 
to  his  commissions,  even  though  the  first  negotiations  are  con- 
ducted without  his  knowledge,  and  the  owner,  in  order  to  make 
the  sale  is  compelled  to  vary  the  original  price  and  terms. 
Barton  v.  Rogers,  84  111.  App.  49 ;  McGuire  v.  Carlam,  61  111. 
App.  295 ;  Jenks  v.  Nobles,  42  111.  App.  33 ;  Doivling  v.  Merri^ 
165  Mass.  491,  43  N.  E.  295;  Smith  v.  Truitt,  107  Mo.  App. 
1,  80  S.  W.  686;  Hogan  v.  Slade,  98  Mo.  App.  44,  71  S.  W. 
1104;  Wright  v.  Brown,  68  Mo.  App.  577;  Brennan  v.  Roach, 
47  Mo.  App.  290;  Gibson's  Est:,  3  Pa.  Dist.  147,  14  Pa.  Co. 
Ct.  241 ;  Shipman  v.  Freeh,  1  N.  Y.  S.  67. 

Where  the  purchaser  begins  negotiations  for  the  purchase 
of  certain  property  through  an  agent  and  completes  through 
other  agents  by  direct  negotiations,  without  the  knowledge  of 
the  first  broker,  can  not  deprive  the  latter  of  his  right  to  com- 
missions.    Crowe  V.  Miss.  Valley  Trust  Co.,  85  Mo.  App.  601. 

A  broker  authorized  to  purchase,  who  made  active  efforts, 
but  another  first  procured  a  satisfactory  offer,  the  first  broker 
was  not  entitled  to  a  commission.  Freeman  v.  Polstein,  97 
N.  Y.  S.  1032,  49  Misc.  644. 

One  who  does  not  himself  produce  the  purchaser,  but  who 
introduces  to  the  seller,  as  a  prospective  purchaser,  one  who, 
acting  under  an  independent  brokerage  arrangement  with  the 
owner,  makes  a  sale,  the  first  broker  is  not  entitled  to  com- 
missions. Peek  V.  Slifer,  122  111.  App.  21;  Latshaw  v.  Moore, 
53  Kan.  234. 

Where  a  broker  having  property  for  sale  called  the  atten- 
tion of  another  broker  thereto,  and  he  sold,  the  first  was  not 
entitled  to  a  commission.  Shapiro  v.  Shapiro,  103  N.  Y.  S. 
305,  117  App.  Div.  817. 

A  sale  made  by  the  second  agent  to  a  client  of  the  first,  but 
at  a  lower  price,  did  not  entitle  the  first  to  a  commission. 
Ames  V.  Cameron,  19  D.  C.  435;  Mears  v.  Stone,  44  111.  App. 
444;  Wolff  V.  Rosenberg,  67  Mo.  App.  403;  Friedman  v.  Have- 
meyer,  56  N.  Y.  S.  97,  37  App.  Div.  518;  Felman  v.  O'Brien, 


COMMISSION    AND    COMPENSATION    OF   AGENTS.  275 

51  N.  Y.  S.  309,  23  Misc.  341;  Powell  v.  Anderson,  15  Daly 
(N.  Y.),  219,  4  N.  Y.  S.  706;  Hendricks  v.  Daniels,  19  N.  Y. 
S.  414;  Powell  V.  Lamb,  1  N.  Y.  S.  431. 

Sec.  446.     Broker  who  was  the  procuring  cause  of  the  sale  is 
entitled  to  the  commission. 

The  agent  who  is  the  procuring  cause  of  the  sale  is  entitled 
to  compensation. 

Arkansas. 

Steivel  v.  Lally  (Ark.  Sup.  '09),  115  S.  W.  1134;  Bogne  v. 
Marshall  (Ark.  Sup.  '08),  114  S.  W.  714;  Hunton  v.  Marshall, 
76  Ark.  375,  88  S.  W.  963;  Scott  v.  Patterson,  53  Ark.  419, 
13  S.  W.  419. 

California. 
Zeimer  Y^_AntiselljJ5  Cal.  509,  17  P.  642. 

Colorado. 

Anderson  v.  Smythe,  1  Colo.  App.  253,  28  P.  478;  Bahcock 
V.  Merritt,  1  Colo.  App.  84,  27  P.  882;  Geiger  v.  Kiser  (Colo. 
Sup.  '10),  107  P.  267;  Laurence  v.  Weir,  3  Colo.  App.  401, 
33  P.  646;  Scott  V.  Lloijd,  19  Colo.  401,  35  P.  733;  Quinhy  v. 
Telford,  4  Colo.  App.  210,  35  P.  276;  Duncan  v.  Borden,  13 
Colo.  App.  481,  59  P.  60;  Leech  v.  demons,  14  Colo.  App. 
45   59  P.  230;  Wheeler  v.  Beers  (Colo.  Sup.  '09),  101  P.  758. 

Connecticut, 

Hoadley  v.  Danhury  Sav.  Bk.,  71  Conn.  599,  42  A.  667,  44 
L.  R.  A.  321;  Duncan  v.  Kearney,  72  Conn.  585,  45  A.  358; 
Williams  v.  Clowes,  75  Conn.  155,  52  A.  820. 

Delaware. 
Hawkins  v.  Chandler,  8  Houst.   (Del.)   434,  32  A.  464. 

District  of  Columbia. 

Bryan  v.  Abcrt,  3  App.  (D.  C.)  Cas.  180;  Clark  v.  Morris, 
30  App.  (D.  C.)   Cas.  553. 


276  american  law  real  estate  agency. 

Georgia. 
Indian  Trust  Co.  v.  Sandlein,  1-25  Ga.  222,  54  S.  E.  65. 

Idaho. 
Church  V.  Denning,  14  Ida.  776,  96  P.  263. 

Illinois. 

Henry  v.  Stewart,  185  111.  448,  57  N.  E.  190;  Rigdon  v. 
Moore,  226  111.  382,  80  N.  E.  901;  Sievers  v.  Griffin,  14  111. 
App.  63 ;  Davis  v.  Gassett,  30  111.  App.  41 ;  Adams  v.  Decker, 
34  ill.  App.  17;  Jenks  v.  Nobles,  42  111.  App.  33;  Clark  v. 
Nessler,  50  111.  App.  550;  Watts  v.  Howard,  51  111.  App.  243; 
Neufeld  v.  Oren,  60  111.  App.  350;  McGuire  v.  Carlan,  61  111. 
App.  295;  Pate  v.  March,  65  111.  App.  482;  Barton  v.  Rogers, 
84  111.  App.  49;  Dean  v.  Archer,  103  111.  App.  455;  Shannon 
V.  Poffs,  117  111.  App.  80 ;  Rigdon  v.  ^Sfrow^,  128  111.  App.  447 ; 
West  End  Store  v.  Mann,  133  111.  App.  544;  Finch  Bros.  v. 
Betz,  134  111.  App.  471;  Dickson  v.  Owews,  134  111.  App.  561; 
Patten  v.  Willis,  134  111.  App.  645;  Gould  v.  i?icar^,  136  111. 
App.  322;  Wright  v.  McClintock,  136  111.  App.  438;  Stine  v. 
T^'err^  (111.  App.  '09),  88  N.  E.  186;  Winetur  v.  Jones,  113  111. 
App.  129. 

Indiana. 

Clifford  V.  Meyer,  6  Ind.  App.  633,  34  N.  E.  23;  Mullen  v. 
Bowen,  26  Ind.  App.  253,  59  N.  E.  419;  Shelton  v.  Lundin 
(Ind.  App.  '10),  90  N.  E.  387. 

Iowa. 

Kelley  v.  Stone,  94  Iowa,  316,  62  N.  W.  842;  Stanford  v. 
Bell,  99  Iowa,  545,  68  N.  W.  817;  Semple  v.  Rand,  112  Iowa, 
616,  84  N.  W.  683;  Rounds  v.  Alee,  116  Iowa,  345,  89  N.  W. 
1098;  mm  V.  Ashtoii,' 121  Iowa,  265,  96  N.  W.  745;  Gibson 
V.  ffj/nf  (Iowa  Sup.  '03),  94  N.  W.  277;  Lewis  v.  Susmilch, 
130  Iowa,  203,  106  N.  W.  624. 


commission  and  compensation  of  agents.  277 

Kansas. 

Driesbach  v.  Rollins,  39  Kan.  268,  18  P.  187;  Marlott  v. 
Elliott,  69  Kan.  477,  77  P.  104;  Votaw  v.  McKeever,  76  Kan. 
870,  92  P.  1120. 

Kentucky. 

Higgins  v.  Miller,  109  Ky.  203,  22  L.  R.  702,  58  S.  W.  580; 
Collier  v.  Johnson,  23  Ky.  L.  R.  2453,  67  S.  W.  830 ;  Hopkins 
V.  Moseley,  31  Ky.  L.  R.  1308,  105  S.  W.  104;  Hobhs  v.  Miller, 
14  Ky.  L.  R.  719. 

Louisiana. 

Taylor  v.  Martin,  109  La.  137,  33  S.  112. 

Maine. 
Straut  V.  Hubbard  (Me.  Sup.  '08),  71  A.  1020. 

Maryland. 

Schwartz  v.  Yearly,  31  Md.  270;  Livezy  v.  Miller,  61  Md. 
336;  Walker  v.  Baldwin,  106  Md.  619,  68  A.  25. 

Massachusetts. 

Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  E.  150;  Bowling 
V.  Merrill,  165  Mass.  491,  43  N.  E.  295;  Whitcomb  v.  Macon, 
170  Mass.  479,  49  N.  E.  742;  French  v.  3/cffai/,  181  Mass.  485, 
63  N.  E.  1068;  Sullivan  v.  Tufts  (Mass.  Sup.  '09),  89  N.  E. 
239;  Willard  v.  Wright  (Mass.  Sup.   '09),  89  N.  E.  559. 

Michigan. 

Ellsmore  v.  Gamble,  62  Mich.  543,  29  N.  W.  97;  Wood  v. 
WeiZs,  103  Mich.  320,  61  N.  W.  503. 

Minnesota. 

Armstrong  v.  Wann,  29  Minn.  126,  12  N.  W.  345;  Putman 
V.  Howe,  39  Minn.  363,  40  N.  W.  258. 


278  AMERICAN    LAW   KEAL   ESTATE   AGENCY. 

IVIlSSOURI. 

Brennan  v.  Roach,  47  Mo.  290;  Stande  v.  Blesch,  42  Mo. 
App.  578;  Russell  v.  Poor  (Mo.  App.  '08),  119  S.  W.  433; 
Goffe  V.  Gibson,  18  Mo.  App.  1 ;  Ramsey  v.  West,  31  Mo.  App. 
676;  Millan  v.  Porter,  31  Mo.  App.  563;  Wright  v.  Brow7i,  68 
Mo.  App.  577 ;  Crowley  v.  Somerville,  70  Mo.  App.  376 ;  Camp- 
hell  V.  Vanstine,  73  Mo.  App.  84;  Hogan  v.  Slade,  98  ]\Io.  App. 
44,  71  S.  W.  1104;  McCreary  v.  Kellogg,  106  Mo.  App.  597, 
81  S.  W.  465 ;  ^miY/i  v.  Truitt,  107  ^lo.  App.  1,  80  S.  W.  686 ; 
Bailee  v.  McMurray,  113  Mo.  App.  253;  88  S.  W.  151;  Glade 
V.  Eastern  III.  Min.  Co.,  129  Mo.  App.  443,  107  S.  W.  1002. 

Nebraska. 

Frenzer  v.  Lee  (Neb.  Sup.  '02),  90  N.  W.  914;  Butler  v. 
Kennard,  23  Neb.  357,  36  N.  W.  579;  St.  Felix  v.  Grics,  34 
Neb.  800,  52  N.  W.  821;  Hambleton  v.  Fort,  58  Neb.  282,  78 
N.  W.  498 ;  Craig  v.  Weed,  58  Neb.  782,  79  N.  W.  718 ;  Lewis 
V.  McDo7iald{:<eh.  Sup.  '09),  120  N.  W.  207 ;  Wasmer  v.  Lean,  32 
Neb.  519,  49  N.  W.  463. 

New  Jersey. 

Shepherd  v.  Eadden,  29  N.  J.  L.  334;  Vreeland  v.  Ve^fer- 
Zeiii,  33  N.  J.  L.  247 ;  Derrickson  v,  Quimhy,  43  N.  J.  L.  373. 

New  York. 

Lloyd  V.  Matthews,  51  N.  Y.  124;  Sussdorf  v.  Schmidt,  55 
N.  Y.  319 ;  W?/?ie  v.  Marine  Nat.  Bk.,  61  N.  Y.  415 ;  Colwell  v. 
Tompkins,  158  N.  Y.  690,  53  N.  E.  1124 ;  Walton  v.  McMorrow, 
175  N.  Y.  493,  67  N.  E.  1090;  Shipman  v.  Freeh,  1  N.  Y.  S.  67; 
King  v.  Bauer,  8  N.  Y.  S.  466 ;  Turner  v.  Putnam,  13  N.  Y.  S. 
567;  Bickard  v.  Hoffman,  19  N.  Y.  S.  472;  Johnson  v.  Bwrn- 
Itemer,  19  N.  Y.  S.  37 ;  Van  Daren  v.  Jelliff,  20  N.  Y.  S.  636, 
1  Misc.  354;  Meyers  v.  Dean,  29  N.  Y.  S.  578;  9  Misc.  183; 
McKnight  v.  Thayer,  21  N.  Y.  S.  440;  Whitehead  v.  Helsey, 
22  N.  Y.  S.  923,  3  ^lisc.  378;  Baker  v.  Thomas,  31  N.  Y.  S. 
993,  11  Misc.  112;  Atwater  v.  Wilson,  34  N.  Y.  S.  153,  13 
Misc.  117;  Ware  v.  Dos  Passos,  38  N.  Y.  S.  673,  4  App.  Div. 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  279 

32;  Randruff  v.  Schroeder,  46  N.  Y.  S.  943,  21  Misc.  52;  Woods 
V.  Barton,  47  N.  Y.  S.  184,  21.  Misc.  326;  Wychoff  v.  Bissell, 
48  N.  Y.  S.  1018,  24  App.  Div.  66 ;  Hamilton  v.  Gillander,  49 
N.  Y.  S.  663,  26  App.  Div.  156 ;  Hay  v.  Piatt,  21  N.  Y.  S.  362, 
66  Hun,  488 ;  McNulty  v.  Rowe,  59  N.  Y.  S.  690,  28  Misc.  523 ; 
Goodwin  v.  Brennecke,  47  N.  Y.  S.  266,  21  App.  Div.  138; 
Burke  v.  Pfeffer,  68  N.  Y.  S.  799,  34  IMisc.  794;  Weinstein  v. 
Goldberg,  40  N.  Y.  S.  680,  17  Misc.  613,  75  N.  Y.  St.  84;  De 
Zavola  V.  Rosaliner,  84  N.  Y.  S.  969 ;  Schatzherg  v.  Frosworth, 
84  N.  Y.  S.  259 ;  Whiteley  v.  Terry,  82  N.  Y.  S.  89,  83  App. 
Div.  197;  Summers  v.  Carey,  74  N.  Y.  S.  980,  69  App.  Div. 
428;  Bellesheim  v.  Palm,  66  N.  Y.  S.  273,  54  App.  Div.  77; 
Johnson  v.  Lord,  54  N.  Y.  S.  922,  35  App.  Div.  325;  Phinney 
v.  Chesehro,  84  N.  Y.  S.  449,  87  App.  Div.  409;  Woolley  v. 
Buhler,  25  N.  Y.  S.  1045,  73  Hun,  158;  Smith  v.  Seattle,  etc., 
R.  Co.,  25  N.  Y.  S.  368,  72  Hun,  202 ;  Martin  v.  Fegan,  88  N. 
Y.  S.  472,  95  App.  Div.  154;  Doran  v.  Bernard,  45  N.  Y.  S. 
387,  18  App.  Div.  36;  Southwick  v.  Swavinski,  99  N.  Y.  S. 
1079,  114  App.  Div.  681;  O'Shea  v.  Brill,  108  N.  Y.  S.  1020; 
Dreyer  v.  Rush,  42  How.  Pr.  22,  3  Daly,  434;  Harris  v.  Burt- 
nell,  2  Daly,  189 ;  Moracella  v.  Odell,  3  Daly,  123 ;  Jungehlut 
V.  Gindra,  118  N.  Y.  S.  942;  Winans  v.  Jaques,  10  Daly,  487; 
Nicholson  v.  Harrison,  120  N.  Y.  S.  923;  Chilton  v.  Butler, 
1  E.  D.  Smith,  150;  Morgan  v.  Mason,  4  E.  D.  Smith,  636; 
White  V,  Twitchings,  26  Hun,  503;  McClave  v.  Paine,  2 
Sweeney,  407,  41  How.  Pr.  140 ;  Frazer  v.  Brown,  67  N.  Y.  S. 
966,  33  Misc.  591;  Glentworthy  v.  Lathe,  21  Barb.  145;  Met- 
calfe V.  Gordon,  83  N.  Y.  S.  808,  86  App.  Div.  368. 

North  Carolina. 
Kinsland  v.  Gnmihaw  (N.  C.  Sup.   '07),  59  S.  E.  1000. 

Oregon. 

Wolverton  v.  Tuttlef,  51  Ore.  501,  94  P.  961;  Jennings  v. 
Trummers,  52  Ore.  149,  96  P.  874. 

Ohio. 
Roush  V.  Loeffler,  18  Cir.  Ct.  806,  6  0.  Cir.  Dee.  760. 


280  AMERICAN    LAW    REAL   ESTATE    AGENCY,  " 


Pennsylvania. 

Earp  V.  Cummins,  54  Pa.  St.  394 ;  Haines  v.  Signer,  9  Phila. 
51 ;  Burchfield  v.  Griffith,  10  Pa.  Super.  Ct.  618 ;  Inslee  v. 
Jones,  Brightly,  76;  Gibson's  Est,,  3  Pa.  Dist.  147,  14  Pa.  Co. 
Ct.  241. 

South  Carolina. 
Goldsmith  v.  Coxe,  80  S.  C.  341,  61  S.  E.  555. 

South  Dakota. 
Wychoff  V.  Kerr  (S.  D.  Sup.  '09),  123  N.  W.  733. 

Texas. 

Bowser  v.  Field  (Tex.  Civ.  App.  '91),  17  S.  W.  45;  Smith 
V.  Fowler  (Tex.  C.  A.  '09),  122  S.  W.  598;  Newton  v.  Dickson 
(Tex.  Civ.  App.  '09),  116  S.  W.  143;  Brown  v.  Shelton  (Tex. 
Civ.  App.  '93),  23  S.  W.  483;  Hahl  v.  Wickes,  44  Tex.  Civ. 
App.  76,  97  S.  W.  838;  Gratj  v.  Carroll  (Tex.  Civ.  App.  '07), 
105  S.  W.  214;  West  v.  Tliompson  (Tex.  Civ.  App.  '08),  106 
S.  W.  1134;  Bowman  v.  S.  W.  Land  Co.  (Tex.  Civ.  App.  '08), 
107  S.  W.  585;  Edwards  v.  Pike  (Tex.  Civ.  App.  '08),  107  S. 
W.  586;  Schultz  V.  Zelman  (Tex.  Civ.  App.  '08),  111  S.  W. 
776;  Peach  River  Lumber  Co.  v.  Montgomery  (Tex.  Civ.  App. 
'08),  115  S.  W.  87. 

"Washington. 
Norris  v.  Bijrne,  38  Wash.  592,  80  P.  808. 

West  Virginia.     , 
Cooper  V.  Upton  (W.  Va.  Sup.   '09),  64  S.  E.  523. 

England. 

Bray  v.  Chandler,  18  C.  B.  717,  86  E.  C.  L.  718 ;  Murray  v. 
Curry,  7  C.  &  P.  584,  32  E.  C.  L.  771;  Colonial  Trust  Co.  v. 
Pac..  Packing  &  Xav.  Co.,  158  Fed.  277,  85  C.  C.  A.  539.  Compare 
Sec.  581. 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  281 

If  a  broker  is  the  procuring  cause  of  the  sale,  the  owner 
can  not  sell  at  a  lower  price,  and  thereby  escape  liability  for 
commissions.  Hubachek  v.  Hazzard,  83  Minn.  437,  86  N.  W. 
426;  Frayner  v.  Morse,  55  Neb.  595,  75  N.  W.  11G3.  If  the 
broker  be  the  instrument  through  whom  a  sale  has  been  ef- 
fected, no  sort  of  artifice,  deceit  or  fraud  will  deprive  him  of 
his  commission.  C order  v.  O'Neill,  176  Mo.  401,  75  S.  ^V.  764. 
774. 

The  fact  that  before  a  sale  the  broker  did  not  inform  the 
owner  that  the  prospective  purchaser  was  his  customer  is  not 
altogether  controlling.  Metcalfe  v.  Gordon,  83  N.  Y.  S.  808, 
86  App.  Div.  368.  Where  a  broker  is  employed  to  find  a  pur- 
chaser at  a  price  satisfactory  to  his  principal,  as  a  condition 
to  demand  commissions  he  must  be  the  procuring  cause  of  the 
sale.  Reads  v.  Hank,  147  Mich.  42,  110  N.  W.  130,  13  D.  L. 
N.  952.  A  broker  who  merely  called  the  attention  of  a  church 
officer  to  a  lot  he  had  for  sale,  telling  him  the  price,  is  not 
the  efficient  and  procuring  cause  of  the  sale,  where  the  church 
refused  to  purchase  through  him,  and  bought  the  property 
through  another  agent.  Witherhee  v.  Walker,  42  Colo.  1,  93 
P.  1118. 

Plaintiff,  a  real  estate  broker,  with  authority  to  sell  land, 
visited  defendant  with  a  purchaser,  and  thereafter  continued 
negotiations  which  were  never  expressly  terminated.  Without 
any  intervening  agency  the  purchaser  decided  to  buy,  but 
made  an  arrangement  with  another  real  estate  broker  where- 
by such  broker  agreed  to  divide  his  commissions  with  the  pur- 
chaser, and  the  latter  broker,  with  full  knowledge  of  plain- 
tiff's negotiations,  solicited  and  received  authority  to  sell  the 
land,  the  owner  not  knowing  of  plaintiff's  negotiations  with 
the  purchaser.  Held,  that,  as  between  the  brokers,  plaintiff's 
efforts  were  the  procuring  cause  of  the  sale,  and  he  was  en- 
titled to  the  commissions.  Lewis  v.  McDonald,  83  Neb.  694, 
120  N.  W.  207.    See  also  Sec.  444. 


CHAPTER  III. 

SECTION.  SECTION. 

447.  Continuity    broken,   and    its       449.     Consummation  of  contract. 

effect  upon  the  rights  of       450.     Introduction    of    prospective 
the  broker.  purchaser. 

448.  Sequence  broken,  and  its  ef- 

fect    upon     the     broker's 
right  to  commissions. 

Sec.  447.     Continuity  broken,  and  its  effect  upon  the  rights 
of  the  broker. 

Plaintiff  had  a  contract  with  defendant  by  which  in  consid- 
eration of  special  efforts  of  the  former  to  sell  a  house  belonging 
to  the  defendant,  and  of  advertising  the  house  in  a  circular 
which  plaintiff  was  to  publish,  the  defendant  agreed  to  pay  a 
certain  commission  on  the  sum  for  which  the  house  should  be 
sold;  if  the  sale  was  made  by  any  other  broker,  a  minimum 
price  was  fixed  at  which  the  property  was  to  be  sold.  Held, 
that  the  plaintiff  was  not  entitled  to  any  commission  where  the 
house  was  subsequently  sold  through  another  broker  by  the 
acceptance  of  a  standing  offer  made  through  such  broker  sev- 
eral months  after  the  contract  with  plaintiff  was  entered  into, 
and  the  sale  being  at  a  less  figure  than  that  named  in  the  con- 
tract with  plaintiff.  Powell  v.  Anderson,  15  Daly  (N.  Y.), 
210,  4  N.  Y.  S.  706. 

Where  an  owner  openly  places  his  property  in  the  hands  of 
rival  agents  for  sale  and  one  makes  the  sale  to  a  customer 
with  whom  the  other  had  first,  but  unsuccessfully  negotiated, 
the  owner  is  not  liable  to  the  latter  for  commissions.  Carper 
v.  Sweet,  26  Colo.  547,  57  P.  45;  Wiggins  v.  Wilson,  55  Fla. 
346,  45  S.  1011;  Girardieu  v.  Gibson,  122  Ga.  313,  50  S.  E. 
91;  Carlson  v.  Nathan,  43  111.  App.  364;  West  End  Co.  v. 
Mann,  133  111.  App.  544;  Piatt  v.  Jahr,  9  Ind.  App.  58,  36 
N.  E.  294;  Livezy  v.  Miller,  61  Md.  336;  Leonard  v.  Eld- 
282 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  283 

ridge,  184  Mass.  594,  69  N.  E.  337;  Crowning  shield  v. 
Foster,  169  Mass.  237,  47  N.  E.  879;  Chandler  v.  ISutton,  5 
Daly  (N.  Y.),  112;  De  Zavola  v.  Bozaliner,  84  N.  Y.  S.  969; 
Friedman  v.  Havemeyer,  55  N.  Y.  S.  97,  37  App.  Div.  518; 
Earp  V.  Cummins,  54  Pa.  St.  394 ;  Dewall  v.  Moody,  24  Tex. 
Civ.  App.  627,  60  S.  W.  269;  Montgomery  v.  Biering  (Tex. 
Civ.  App.  '95),  30  S.  W.  508;  Land  Mtge.  Bk.  v.  Hargis  (Tex. 
Civ.  App.   '02),  70  S.  W.  352. 

If  the  broker  fails  to  bring  a  customer  to  terms  and  aban- 
dons negotiations,  he  is  not  ordinarily  entitled  to  commissions 
upon  a  sale  made  by  the  owner  to  the  customer.  Watts  v. 
Howard,  51.  111.  App.  243 ;  Cullen  v.  Bell,  43  Minn.  226,  45 
N.  W.  428;  Cathcart  v.  Bacon,  47  Minn.  34,  49  N.  W.  331; 
Tooker  v.  Duckworth,  107  Mo.  App.  231,  80  S.  W.  963;  Hen- 
kel  V.  Dunn,  97  Mo.  App.  671,  71  S.  W.  735 ;  Barnard  v.  Mon- 
nott,  34  Barb.  (N.  Y.)  90;  Meyer  v.  Strauss,  58  N.  Y.  S.  904, 
42  App.  Div.  613 ;  Getzler  v.  Boehm,  38  N.  Y.  S.  52,  16  Misc. 
390;  Alden  v.  Earle,  121  N.  Y.  688,  24  N.  E.  705;  Tyng  v. 
Constable,  71  N.  Y.  S.  820,  35  Misc.  283 ;  Miller  v.  Vining,  98 
N.  Y.  S.  466,  112  App.  Div.  304;  Schano  v.  Storch,  107  N.  Y. 
S.  26,  56  Misc.  484;  Jones  v.  Buck  (Iowa  Sup.  '09),  120  N. 
W.  112. 

Where  a  broker  employed  to  sell  a  whole  tract  of  land  or  a 
part  thereof,  failed,  and  an  attempt  was  made  to  discharge 
him,  but  he  continued  his  negotiations  and  the  owner  after- 
ward sold  a  portion  to  the  broker's  customer,  the  broker  was 
held  entitled  to  recover  a  proportionate  commission.  Diamond 
v.  Wheeler,  80  N.  Y.  S.  416,  80  N.  Y.  App.  Div.  58. 

Plaintiffs,  to  recover  under  their  agreement  to  negotiate  the 
purchase  for  defendant  of  land  for  certain  commissions  on  the 
amount  of  the  purchase,  must  show  that  through  their  efforts 
and  negotiations  defendant  became  the  purchaser;  this  is  not 
the  case  where  their  efforts  to  get  a  price  from  the  owner  which 
defendant  would  accept  failed,  and  long  after  their  negotia- 
tions and  dealings  with  him  had  ceased,  and  they  and  defend- 
ant had  abandoned  hope  of  reaching  an  agreement  with  him, 
he,  on  learning  that  defendant  was  to  commence  condemna- 
tion proceedings  for  the  land,  made  an  offer  to  defendant, 
which  was  accepted,  to  submit  to  arbitration  the  price  at  which 


284  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

defendant  should  take  the  property.     Martien  v.  Mayor,  etc., 
Baltimore,  109  Md.  260,  71  A.  966. 

If  a  broker,  after  offering  a  farm  at  a  price  in  excess  of 
the  lowest  price  authorized  by  the  owner,  which  the  purchaser 
said  was  too  high,  allowed  the  purchaser  to  go  with  the  un- 
derstanding that  the  price  stated  was  the  lowest  which  would 
be  accepted,  and  made  no  arrangements  for  further  negotia- 
tions, and  the  purchaser  notified  the  owner  of  the  negotiations 
with  the  broker,  and  that  he  would  not  deal  further  with  him, 
and  the  owner,  in  good  faith,  sold  the  farm  to  the  purchaser, 
the  broker  would  not  be  entitled  to  commissions  on  the  sale. 
Heenan  v.  Harris  (Mich.  Sup.  '09),  121  N.  W.  741,  16  D.  L. 
N.  344. 

Sec.  448.     Sequence  broken,  and  its  effect  upon  the  broker's 
right  to  commissions. 

A  broker  who  negotiated  with  one  person,  who  called  the 
attention  of  another  to  the  property,  and  that  other  bought 
from  the  vendor,  or  through  another  broker,  is  not  entitled 
to  commissions;  to  be  entitled  to  commissions  he  must  be  the 
procuring  cause  ai^d  not  merely  a  cause  ot  causes.  Baumgarth 
V.  Hayne,  54  111.  App.  496;  Gleason  v.  Nelson,  162  Mass.  245, 
38  N.  E.  497;  Vandyke  v.  Walker,  49  Mo.  App.  381;  Burk- 
holder  v.  Fanner,  34  Neb.  1,  51  N  W.  293;  Johnson  v.  Seidal, 
150  Pa.  St.  396,  24  A.  687.     See  also  Sec.  69. 

Under  somewhat  similar  circumstances,  in  another  State,  a 
broker  was  held  entitled  to  recover  commissions.  Lincoln  v. 
McClatchie,  36  Conn.  136.  See  also  Games  v.  Finnegan,  198 
Mass.  128,  84  N.  E.  324. 

In  the  case  of  Gleason  v.  Nelson,  162  Mass.,  the  court,  re- 
ferring to  the  Connecticut  case,  observes  that  the  broker  in 
that  case,  "advertised  the  property;  A.  saw  the  advertisement, 
conferred  with  the  broker,  and  went  and  told  his  friend  B.,  in 
whose  behalf  he  felt  an  interest,  and  B.  bought  the  property. 
It  was  held  that  the  broker  was  the  procuring  cause  of  the 
sale  and  so  was  entitled  to  his  commission."  But,  "where 
there  has  been  no  direct  communication  between  the  broker 
and  the  purchaser,  it  must  be  shown  affirmatively  that  the 
latter  was  induced  to  enter  into  the  negotiation  which  resulted 


COMMISSION    AND    COMPENSATION   Or    AGENTS.  285 

in  the  purchase  through  the  means  employed  by  the  broker 
for  that  purpose.  If  the  broker  merely  talked  about  the  prop- 
erty with  different  persons,  and  one  of  them  of  his  own  ac- 
cord, and  not  acting  in  behalf  of  the  broker,  mentioned  to 
another  that  the  property  was  for  sale,  and  such  last  men- 
tioned person  thereupon  looked  into  the  matter  and  finally  be- 
came the  purchaser,  the  agency  of  the  broker  in  inducing  the 
sale  was  not  sufificiently  direct  to  entitle  him  to  a  commission." 
(162  Mass.  249-250.)     See  the  next  Section. 

Sec.  449.     Consummation  of  contract. 

"Where  a  broker  is  employed  to  sell  or  exchange  property 
the  terms  of  the  employment  may  reqidre  the  completion  of 
the  contract  or  transfer  of  the  title  before  compensation  is 
earned,  unless  the  act  of  the  principal  has  prevented  perform- 
ance. Hyanis  v.  Miller,  71  Ga.  608 ;  Kcrfoot  v.  Steele,  113  111. 
610;  Jenkins  v.  H oiling sivortli,  83  111.  App.  139;  Ormsby  v. 
Graham,  123  Iowa,  202,  98  N.  W.  724;  Boyd  v.  Watson,  101 
Iowa,  214,  70  N.  W.  120;  Stratton  v.  Sam'l.  W.  Jones  Co., 
20  Ky.  L.  R.  1787,  50  S.  W.  33 ;  De  Santos  v.  Taney,  13  La. 
Ann.  151;  Didson  v.  Duraldo,  2  Rob.  (La.)  163;  Games  v. 
Howard,  180  Mass.  569,  63  N.  E.  122;  Krone^iherger  v.  Bier- 
ling,  76  N.  Y.  S.  895,  37  IMisc.  817;  Feiner  v.  Kohke,  34  N. 
Y.  S.  676,  13  Misc.  499;  Pierce  v.  Truitt  (Pa.  Sup.  '88),  12  A. 
661 ;  Michener  v.  Beiern,  9  Pa.  Co.  Ct.  637 ;  Brennam  v.  Perry, 
7  Phila.  (Pa.)  242;  Laivler  v.  Armstrong  (Wash.  Sup.  '09), 
102  P.  775;  Pratt  v.  Patterson,  7  Phila.  (Pa.)  135;  Owen  v. 
Kuhn  (Tex.  Civ.  App.  '03),  72  S.  W.  432;  Morton  v.  Barney, 
140  111.  App.  333. 

"Where  the  contract  makes  the  right  to  commissions  dependent 
upon  consummation,  a  broker  can  not  recover  commissions 
unless  the  contract  has  been  consummated  and  the  money  paid. 
Lindley  v.  Fay,  119  Cal.  239,  51  P.  333;  Ballard  v.  Shea,  121 
111."  App.  135;  Gremer  v.  Miller,  56  Minn.  52,  57  N.  W.  318; 
West  V.  Stoeckel,  6  Ohio  Dec.  (Rep.)  1082;  10  Am.  L.  R.  309; 
Reichard  v.  Wallach,  91.  N.  Y.  S.  347 ;  Bishop  v.  Averill,  17 
Wash.  209,  49  P.  237,  50  P.  1024;  Power  v.  Kane,  5  Wis.  265. 

There  is  authority  to  the  effect  that  a  broker's  right  to  com- 
missions is  not  defeated  because  the  principal  is  unable  to  com- 


286  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

ply  with  the  contract,  as  where  independent  of  the  broker  he 
has  previously  sold  the  property.  Lane  v.  Albright,  49  Ind. 
275 ;  Gregor  v.  McKee,  43  N.  Y.  S.  486,  18  Misc.  613 ;  Levy  v. 
Rot  he,  39  X.  Y.  S.  1057,  17  Misc.  402;  Woodall  v.  Foster,  91 
Tenn.  195,  18  S.  W.  241. 

In  later  New  York  cases  the  doctrine  has  undergone  a  revi- 
sion, on  the  ground  that  the  owner  may  sell  his  premises  at 
any  time  and  to  any  customer  who  is  willing  to  buy  upon  his 
terms,  and  that  commissions  may  not  be  collected  for  customers 
produced  after  the  premises  have  been  sold.  Hodge  v.  Appellees, 
107  N.  Y.  S.  170,  122  App.  Div.  437;  Ettinghoff  v.  Harowitz, 
100  N.  Y.  S.  1002,  115  App.  Div.  571. 

A  broker  employed  to  secure  a  loan  does  not  earn  his  com- 
missions by  merely  procuring  a  lender  who  offers  to  make  the 
loan,  but  who,  after  acceptance  by  the  borrower,  refuses  to 
consummate  the  transaction.  'Ashfield  v.  Case,  87  N.  Y.  S. 
649,  93  App.  Div.  452;  Crasto  v.  White,  5  N.  Y.  S.  718,  52 
Hun,  473.    See  also  Sec.  460. 

To  entitle  a  real  estate  broker  to  his  commissions  he  must 
produce  a  person  who  actually  purchases  the  property  by 
complj'ing  with  the  terms  agreed  upon,  unless  his  failure  to 
do  so  is  caused  by  the  fault  of  the  vendor.  Richards  v.  Jack- 
son, 31  Md.  250;  Briggs  v.  Eowe,  1  Abb.  Dec.  (N.  Y.)  189,  4 
Keyes  424;  Burnet  v.  Edling,  19  Tex.  Civ.  App.  711,  48  S.  W. 
775;  Parker  v.  Nat.  Bdg.,  etc.,  Assn.,  55  W.  Va.  134,  46  S. 
E.  811. 

A  broker  employed  to  effect  a  sale  is  not  entitled  to  commis- 
sions until  consummation.  Dorrington  v.  Powell,  52  Neb.  440, 
72  N.  W.  587;  Lijle  v.  Uni.  Land  &  Inv.  Co.  (Tex.  Civ.  App. 
'95),  30  S.  W.  723;  Smith  v.  Sharp    (Ala.    '09),  50  S.  381. 

A  broker  failing  to  show  a  completed  contract  between  the 
seller  and  the  buyer  is  not  entitled  to  commissions.  Reicherd 
V.  Wallach,  91  N.  Y.  S.  347.  A  broker  who  contracted  for  com- 
missions to  be  all  over  a  certain  net  selling  price,  required  a 
consummation  of  the  sale  to  earn  commissions.  Munroe  v.  Tay- 
lor, 191  Mass.  483,  78  N.  E.  106.  See  also  Sees.  119,  193, 
224,  272. 

Completion  of  the  contract  falls  upon  the  owner  after  the 
broker  has  found  a  customer  ready  and  willing  to  buy,  where 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  287 

his  contract  is  to  find  a  purchaser.    Swigert  v.  Haivley,  40  111. 
App.  610,  reversed  on  other  grounds,  140  111.  185. 

Sec.  450.    Introduction  of  prospective  purchaser. 

The  introduction  by  a  broker  of  a  prospective  purchaser  to 
the  principal  held  sufficient  to  establish  a  contract  of  employ- 
ment. Carroll  v.  O'Shea,  19  N.  Y.  S.  374.  Introduction  to  the 
owner,  followed  by  a  sale,  entitles  the  broker  to  commissions, 
although  the  sale  is  made  for  a  less  price  and  upon  different 
terms.  Henrij  v.  Stewart,  185  111.  448,  57  N.  E.  190;  Dean  v. 
Archer,  103  111.  App.  455;  Pete  v.  March,  65  111.  App.  482; 
Hafner  v.  Herron,  60  111.  App.  592,  affirmed  165  111.  242,  46 
N.  E.  211;  Gibson  v.  Hunt  (Iowa  Sup.  '03),  94  N.  W.  277; 
Drieshack  v.  Rollins,  89  Kan.  268,  18  P.  187;  Schwartz  v. 
Yearly,  31  Md.  270 ;  French  v.  McKay,  181  Mass.  485,  63  N.  E. 
1068 ;  Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  E.  150;  Reishus- 
Reimer  Land  Co.  v.  Benner,  91  Minn.  401,  98  N.  W.  186 ;  Haug 
V.  Haughan,  51  Minn.  558,  53  N.  W.  874;  Francis  v.  Baker,  45 
Minn.  83,  47  N.  W.  452 ;  Sallee  v.  McMaury,  113  Mo.  App.  253, 
88  S.  W.  157 ;  Vreeland  v.  Vetterlein,  33  N.  J.  L.  247 ;  Sibbald 
V.  Bethlehem  Iron  Co.,  83  N.  Y.  378;  Lloyd  v.  Matthews,  51 
N.  Y.  124;  Goodwin  v.  Brennecke,  47  N.  Y.  S.  266,  21  App. 
Div.  138 ;  Glentworth  v.  Luther,  21  Barb.  145 ;  Baker  v.  Thomas, 
31  N.  Y.  S.  993,  11  Misc.  112 ;  Van  Doren  v.  Jelleffe,  20  N.  Y.  S. 
636,  1  Misc.  354;  Turner  v.  Putnam,  13  N.  Y.  S.  567;  Rousch 
V.  Loeffler,  18  Ohio  Cir.  Ct.  806,  6  0.  Cir.  Dec.  760;  Insloe  v. 
Jones,  Brightly  (Pa.)  76;  Haines  v.  Bigner,  9  Pliila.  (Pa.)  51; 
Smith  V.  Sharp  (Ala.  Sup.  '09),  50  S.  381. 

A  broker  is  entitled  to  commissions,  although  he  took  no  part 
in  the  negotiations,  where  a  sale  resulted  from  his  introducing  a 
customer  to  the  owner;  irrespective  of  the  purchase  price,  and 
although  the  sale  was  made  by  the  owner.  Holland  v.  Hotvard, 
105  Ala.  538,  17  S.  35;  Snijder  v.  Fearer,  87  111.  App.  275; 
Keeler  v.  Grace,  27  111.  App.  427;  Henderson  v.  Collins,  69 
Iowa,  51,  28  N.  W.  431 ;  Jones  v.  Adler,  34  ]\Id.  440 ;  Delta,  etc., 
Land  Co.  v.  Wallace,  83  Miss.  656,  36  S.  263 ;  Timberman  v. 
Craddock,  70  Mo.  638 ;  Crone  v.  Miss.  Valley  Trust  Co.,  85  Mo. 
App.  601 ;  Bass  v.  Jacobs,  63  Mo.  App.  393 ;  Jones  v.  Berry, 
37  Mo.  App.  125 ;  Nicholas  v.  Jones,  23  Neb.  813,  37  N.  W.  679 ; 


288  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Butler  V.  Kennard,  23  Neb.  357,  36  N.  W.  579;  Potvin  v.  Cur 
ran,  13  Neb.  302,  14  N.  W.  400;  Lloyd  v.  Matthews,  51  N.  Y. 
124;  Gillen  v.  Wise,  14  Daly  (N.  Y.)  480,  15  N.  Y.  St.  367; 
Hanford  v.  Shafter,  4  Daly,  243;  Ludlow  v.  Carman,  2  Hilt. 
(X.  Y.)  107;  O'Toole  v.  rnc/.;fr,  38  N.  Y.  S.  969,  16  Misc.  485, 
affirmed  40  N.  Y.  S.  695,  17  Misc.  554;  Fidelity  Ins.  Co.'s  Ap- 
peal, 161  Pa.  St.  177,  28  A.  1079;  Gibson's  Est.,  3  Pa.  Disf 
147,  14  Pa.  Co.  Ct.  241 ;  Scott  v.  Clark,  3  S.  D.  486,  54  N.  W. 
538;  Royster  v.  Magavcny,  9  Lea  (Tenn.)  148;  Arrington  v. 
Cary,  5  Baxt.  (Tenn.)  609. 

The  broker  who  first  introduced  a  prospective  purchaser  to 
the  owner  was  held  to  be  entitled  to  commissions  on  a  sale  made 
through  another.  Crone  v.  Miss.  Valley  Trust  Co.,  85  Mo. 
App.  601  A  broker  is  not  entitled  to  compensation  for  merely 
introducing  a  purchaser  to  the  owner,  in  the  absence  of  a  con- 
tract of  employment,  unless  his  character  as  agent  was  known 
or  disclosed  at  the  time.  Keener  v.  Harrod,  2  Md.  63.  See 
also  Sec.  68. 


CHAPTEE   IV. 

SECTION.  SECTION. 

451.  Effect  of  representations   as  453.     Apportionment. 

to  the  dimensions  of  the         454.     Defeat   of  broker's   right  to 
property  offered.  commissions. 

452.  Purchaser     acting     for     an- 

otlier. 

Sec.  451.     Effect  of  representations  as  to  dimensions  of  the 
property  offered. 

Defendant  employed  plaintiff  to  sell  a  piece  of  property 
for  her  representing  to  him  that  it  was  seventy-six  feet  in 
depth.  Plaintiff  procured  a  purchaser  to  whom  defendant 
made  the  same  representations,  and  on  his  discovering  that 
the  lot  was  in  reality  but  sixty-six  feet  deep  he  refused  to  com- 
plete the  purchase.  Held,  that  plaintiff  was  not  entitled  to 
commissions.  Hausman  v.  Herdtf elder,  80  N.  Y.  S.  1039,  81 
App.  Div.  46 ;  Diamond  v.  Hartley,  55  N.  Y.  S.  994,  61  N.  Y.  S. 
1022,  38  App.  Div.  87,  47  App.  Div.  1.     See  also  Sec.  183,  435. 

In  an  action  by  a  broker  to  recover  commissions  for  procur- 
ing a  loan,  it  appeared  that  the  written  portion  of  the  applica- 
tion for  the  loan  was  filled  in  by  the  broker,  and  that  he  was 
aware,  when  defendant  signed  the  application,  that  defendant 
was  uncertain  as  to  the  exact  dimensions  of  the  lot  on  which 
security  was  to  be  given,  though  the  dimensions  were  stated  in 
the  application,  and  the  loan  was  rejected  because  the  dimen- 
sions were  not  correctly  given.  Held,  that  inasmuch  as  the 
broker  was  equally  responsible  with  the  defendant  for  not  dis- 
closing the  situation  to  the  lender  and  for  their  refusal  to  make 
the  loan,  he  could  not  recover.  Diamond  v.  Harley,  61  N.  Y.  S. 
1022,  47  App.  Div.  1. 

Where  a  vendee  refused  to  complete  a  contract  for  the  sale 
of  land  by  reason  of  an  alleged  deficiency  in  quantity,  but  it 
was  shown  that  the  contract  written  by  one  of  the  vendor's 
brokers  contained  a  mistaken  description  and  included  land 
which  the  vendor  did  not  own,  without  his  knowledge  and  eon- 

289 


290  AMERICAN    LAW   REAL   ESTATE   AGENCY, 

sent,  but  by  reason  of  the  receding  of  a  lake  on  which  the  land 
bordered,  the  farm  contracted  to  be  conveyed  actually  con- 
tained more  than  the  number  of  acres  specified,  the  brokers 
were  not  entitled  to  a  commission.  Scott  v.  Gage,  16  S.  D.  285, 
92  N.  W.  37. 

Where  the  principal  gives  the  broker  a  card  describing  the 
lot  as  twenty-three  feet  wide,  and  the  broker  in  good  faith 
makes  this  statement  to  a  prospective  purchaser,  and  the  sale 
falls  through  because  the  true  width  of  the  lot  falls  short  five' 
inches,  the  broker  was  held  entitled  to  recover  his  commis- 
sions. Cohen  v.  Farley,  58  N.  Y.  S.  1102,  28  Misc.  168.  This 
conflicts  with  later  decisions  in  the  same  jurisdiction.  Haus- 
man  v.  Herdtf elder,  80  N.  Y.  S.  1039,  81  App.  Div.  46;  Dia- 
mond V.  Hartley,  61  N.  Y.  S.  1022,  47  App.  Div.  1. 

Where  a  real  estate  broker  procures  a  purchaser  of  land  at 
the  agreed  price,  and  the  owner  sells  .to  him;  on  discovering 
that  the  land  does  not  contain  the  supposed  number  of  acres 
the  broker  is  entitled  to  his  commissions  at  the  agreed  rate  on 
the  latter  sum.  Hoefling  v.  Hableton,  84  Tex.  517,  19  S.  W.  689. 
On  the  other  hand,  another  court  holds,  where  the  terms  of  sale 
are  fixed  by  the  vendor,  in  accordance  with  which  the  broker 
undertakes  to  produce  a  purchaser,  and  upon  the  procurement 
of  a  purchaser,  the  vendor  voluntarily  reduces  the  price  of  the 
property,  or  the  quantity,  or  otherwise  changes  the  terms  of 
sale  as  proposed  to  the  broker,  so  that  a  sale  is  made,  or  terms 
or  conditions  are  offered  which  the  proposed  buyer  is  ready 
and  willing  to  accept,  the  broker  will  be  entitled  to  his  commis- 
sions at  the  rate  specified  in  his  agreement  with  the  principal. 
Stewart  v.  Mather,  32  Wis.  344.  Compare  Bowman  v.  Hart- 
man,  27  0.  Cir.  Ct.  309. 

In  an  action  by  a  real  estate  agent  to  recover  commissions 
earned,  on  the  ground  that  the  purchaser  refused  to  take  the 
property  on  account  of  false  representations  of  the  length  of 
the  lot,  a  verdict  for  defendant  is  clearly  right,  where  it 
appears  that  the  purchaser  knew  the  exact  length  of  the  lot 
before  he  agreed  to  purchase.  Sloman  v.  Bodwell,  24  Neb.  790, 
40  N.  W.  321.  The  same  is  true  where  the  broker  knew  the 
fiize  of  the  lot.  Keough  v.  Meyer,  111  N.  Y.  S.  1,  127  App. 
Div.  273. 


COMMISSION    AND    COMPENSATION   OP    AGENTS.  291 

Where  plaintiff  agreed  with  defendant  to  procure  for  him  a 
person  who  would  negotiate  for  the  purchase  of  his  property, 
and  he  did  procure  such  a  person,  and  negotiations  were  en- 
tered into  and  carried  on,  but  resulted  in  a  sale  of  a  less  amount 
of  property  than  was  contemplated  in  the  agreement  under 
which  plaintiff  undertook  to  procure  such  purchaser,  he  was 
entitled  to  recover  commissions  on  the  quantity  sold.  Bowman 
V.  Hartman,  27  0.  Cir.  Ct.  309.  Compare  Stewart  v.  Mather, 
32  Wis.  344.  Broker  entitled  to  commission  where  sale  was 
defeated  by  misrepresentation  made  to  the  purchaser  by  an 
employe  of  the  seller.  Hugill  v.  Weekley,  64  W.  Va.  210,  61 
S.  E.  360,  15  L.  R.  A.,  N.  S.  1262. 

Sec.  452.    Purchaser  acting  for  another. 

The  fact  that  the  purchaser  secured  by  the  real  estate  broker 
was  acting  in  behalf  of  another,  does  not  affect  the  broker's 
right  to  a  commission,  if  the  purchaser  was  able,  ready  and 
willing  to  buy  on  the  terms  authorized  by  the  principal,  and 
no  binding  written  contract  of  sale  is  required.  Gelott  v.  Ridge, 
117  Mo.  553,  23  S.  W.  882.    See  also  Sec.  487. 

Failure  of  a  broker  to  disclose  to  the  vendors  that  the  pur- 
chaser was  acting  as  the  agent  for  an  undisclosed  principal, 
does  not  affect  the  broker's  right  to  commissions,  the  purchaser 
being  financially  able  to  carry  out  his  contract,  so  that  the 
vendors  are  not  injured.  Lawlcr  v.  Armstrong  (Wash.  Sup. 
'09),  102  P.  775. 

Sec.  453.    Apportionment. 

Where  the  evidence  shows  that  defendant's  contract  to  pay 
plaintiff  certain  commissions  for  the  sale  of  lands  is  either  a 
joint  contract  with  that  of  other  owners  of  the  land  or  his  indi- 
vidual contract,  the  court  properly  refused  to  charge  that  de- 
fendant is  only  liable  for  his  share  of  the  commission  to  the 
extent  of  his  individual  interest.  Their  liabilities  can  not  be 
apportioned.     Mousseau  v.  La  Roche,  80  Ga.  568,  5  S.  E.  780. 

Sec.  454.    Defeat  of  broker's  right  to  commissions. 

A  real  estate  agent  who  carries  on  the  negotiations  between 
the  parties  and  finally  brings  them  together,  is  entitled  to  his 


292  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

commissions,  though  the  trade  is  eventually  effected  by  the 
owner  himself  or  by  a  third  person  acting  for  him.  Larson  v. 
Thoma  (Iowa  Sup.  '09),  121  N.  W.  1059;  Scott  v.  Patterson,  53 
Ark.  49,  13  S.  W.  419;  Hancock  v.  Stacey  (Tex.  Civ.  App. 
'09),  116  S.  W.  177;  Howe  v.  Werner,  7  Col.  App.  530,  44  P. 
511;  Gresham  v.  Connelly,  114  Ga.  906,  41  S.  E.  42;  Button  v. 
Renner,  74  111.  App.  124;  Ellis  v.  Dunsworth,  49  111.  App.  187; 
Gibson  V.  Hunt  (Iowa  Sup.  '03),  94  N.  W.  277;  Hubbard  v. 
Letter,  145  Mich.  387,  108  N.  W.  735,  13  D.  L.  N.  477;  Hedden 
V.  Shepherd,  29  N.  J.  L.  334;  Somers  v.  Westcott,  66  N.  J.  L. 
551,  49  A.  462 ;  Woolley  v.  Loew,  80  Hun,  294,  30  N.'  Y.  S.  86 ; 
Carroll  v.  Pettit,  67  Hun,  418,  22  N.  Y.  S.  250;  Chilton  v. 
Butler,  1  E.  D.  Smith  (N.  Y.)  150;  Esmond  v.  Kingsley,  3  N. 
Y.  S.  696;  Lynch  v.  McKenno,  58  How.  Pr.  (N.  Y.)  42;  Keys 
V.  Johnson,  68  Pa.  St.  42;  Sylvester  v.  Johnson,  110  Tenn.  392, 
75  S.  W.  923;  Van  Tobel  v.  Stetson,  etc..  Mill  Co.,  32  Wash. 
683,  73  P.  788;  Day  v.  Porter,  161  111.  235,  43  N.  E.  1073; 
Church  V.  Dunham,  14  Idaho,  776,  96  P.  203,  205;  Jennings 
V.  Trumin,  52  Ore.  149,  96  P.  874. 

After- the  principal  and  the  customer  found  by  the  broker 
agree  upon  terms,  the  broker's  right  to  a  commission  can  not  be 
defeated  by  the  principal's  transferring  the  property  indirectly 
by  a  deed  to  a  third  person  who  reconveyed  to  the  broker's 
customer.  Williams  v.  Bishop,  11  Colo.  App.  378,  53  P.  269 ; 
Barnett  v.  Gliding,  3  Ind.  App.  415,  29  N.  E.  154,  927 ;  Steidl 
V.  McClymonds,  90  Minn.  205,  95  N.  W.  906;  Burke  v.  Cogs- 
well, 39  Minn.  344,  40  N.  W.  251 ;  Oarvin  v.  Abels-Gold  R.  Co., 
110  N.  Y.  S.  582,  126  App.  Div.  329 ;  Martin  v.  Fegan,  88  N. 
Y.  S.  472,  95  App.  Div.  154 ;  Minister  v.  Benoliel,  66  N.  Y.  S. 
943,  32  :\Iisc.  630,  reversed  on  other  grounds,  67  N.  Y.  S.  1044, 
33  M.  586 ;  Konner  v.  Anderson,  66  N.  Y.  S.  338,  32  Misc.  511 ; 
Fox  V.  Byrnes,  52  N.  Y.  Super.  Ct.  150. 

Nor  by  an  agreement  declaring  the  sale  off.  O'Neill  v. 
Printz,  115  ^lo.  App.  215,  91  S.  W.  174.  In  order  to  defeat 
the  broker's  right  to  a  commission,  the  principal  must  have 
substantial  ground  for  refusing  to  complete  the  transaction, 
and  have  done  nothing  to  estop  setting  it  up.  Alabama  Loan 
Co.  V.  Deans,  94  Ala.  377,  11  S.  17 ;  J!i^ce_v^_Soule^S7  CaL 
313,  25  P.  430;  Cawker  v.  Apple,  15  Colo.  141,  25  P.  181; 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  293 

Peahody  v.  Dewey,  51  111.  App.  260,  affirmed  153  111.  657,  37 
N.  E.  977,  27  L.  R.  A.  322 ;  Indiana  Ber.  Asp.  Co.  v.  Robinson, 
29  Ind.  App.  59,  63  N.  E.  797 ;  Felts  v.  Butcher,  93  Iowa,  414, 
61  N.  W.  991;  Haijden  v.  Grillo,  35  Mo.  App.  647;  Bailey  v. 
Chapman,  41  Mo.  536;  Hartford  v.  McGillicuddy,  103  Md. 
224,  68  A.  860:  Carpenter  v.  Rynders,  52  Mo.  278;  Blaydos 
V.  Adams,  35  Mo.  App.  526;  Goodson  v.  Emhleton,  106  Mo. 
App.  77,  80  S.  W.  22 ;  Finke  v.  Menke,  67  N.  Y.  S.  954,  33  Misc. 
769;  Ernst  v.  Loeb,  108  N.  Y.  S.  631;  Kirwan  v.  Barney,  61 
N.  Y.  S.  122,  29  Misc.  614 ;  Friend  v.  Jetter,  43  N.  Y.  S.  287, 
19  Misc.  101 ;  Delaplane  v.  Turney,  44  "Wis.  31 ;  Greenwald  v. 
Rosen,  113  N.  Y.  S.  764,  61  Misc.  260. 

The  fact  that  the  principal  does  not  own  the  property  which 
he  employs  the  broker  to  sell  does  not  defeat  the  broker's  right 
to  compensation  on  procuring  a  purchaser.  Smith  v.  Schiele, 
93  Cal.  144,  28  P.  857.  Where,  at  the  date  of  the  contract  of 
employment  the  principal  had  only  an  option  on  the  land,  or 
for  any  other  reason  can  not  avail  himself  of  the  offer  pro- 
cured by  the  broker.  Monk  v.  Parker,  180  Mass.  246,  63  N. 
E.  793.  False  representations  of  the  broker  concerning  the 
property  which  he  was  negotiating  to  sell,  do  not  defeat  his 
right  to  commissions  where  it  appears  that  the  purchaser,  un- 
der the  contract  of  sale,  made  independent  inquiries  as  to  the 
subject  of  the  representations.  Friend  v.  Jette,  41  N.  Y.  S. 
560,  18  Misc.  368.  Where  a  principal  made  false  representa- 
tions that  defeated  a  sale  made  by  the  broker,  this  did  not 
deprive  the  broker  of  his  commissions.  Glentworth  v.  Luther, 
21  Barb.  (N.  Y.)  145.  Compare  Crockett  v.  Grayson,  98  Va. 
354,  36  S.  E.  477. 

A  vendor  can  not  escape  liability  to  the  broker  for  commis- 
sions by  himself  completing  a  sale  to  a  purchaser  with  whom 
the  broker  had  been  negotiating,  by  including  in  the  sale  other 
lands  in  addition  to  those  the  broker  was  employed  to  sell. 
Ransom  v.  Weston,  110  Iklich.  240,  68  N.  W.  152.  Where  a 
broker  is  employed  to  sell  land,  and  when  his  negotiation  is 
nearly  finished  the  owner  limits  the  time  within  which  a  sale 
must  be  made  and  notice  be  sent  to  him,  and  the  agent  makes 
a  sale  without  delay  and  sends  notice  to  the  principal  within 
the  time  limited,  that  being  all  that  was  required  of  the  broker 


294  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

under  the  contract,  the  miscarriage  of  the  notice  does  not  de- 
prive the  agent  of  his  commission.  Gibbons  v.  Sherwin,  28 
Neb.  146,  44  N.  W.  99.  Wliere  the  authority  conferred  on  the 
broker  to  sell  lands  is  limited  in  time,  the  agent  will  be  en- 
titled to  his  commission  if  within  that  time  he  procures  a  pur- 
chaser with  whom  his  principal  enters  into  a  binding  contract 
of  sale  and  purchase,  although  the  conveyance  of  the  lands 
is  not  made  until  after  the  time  allowed  has  elapsed.  Crowley 
Co.  V.  Meyers,  69  N.  J.  L.  245,  55  A.  305;  Cody  v.  Dempsey, 
83  N.  Y.  S.  899,  86  App.  Div.  335. 

Defendant  placed  his  ranch  in  plaintiffs'  hands  to  sell  on 
commission  within  a  specified  time ;  they  found  a  purchaser 
who  paid  to  defendant  part  of  the  purchase  money,  and  ten- 
dered the  balance  in  checks,  which  defendant  refused;  after 
the  time  specified  had  expired,  defendant,  without  returning 
the  partial  payment,  conveyed  the  ranch  to  his  father,  who 
conveyed  it  to  the  purchaser  on  payment  of  the  balance  of 
the  agreed  price,  defendant  saying  at  the  time  that  he  did  not 
intend  to  pay  plaintiffs  any  commissions.  Held,  that  the  plain- 
tiffs were  entitled  to  their  commissions,  the  sale  being  made 
to  their  purchaser,  and  defendant  not  having  repudiated  the 
original  contract  of  sale  by  returning  the  money  paid  upon 
it.     Wilson  V.  Sturgis,  71  Cal.  226,  16  P.  772^ 

In  an  action  by  a  real  estate  agent  to  recover  commissions 
for  trading  defendant's  house  and  lot,  where  it  appears  that 
part  of  the  consideration  to  be  paid  by  the  purchaser  was  a 
horse,  and  that  defendant  objected  to  the  price  placed  on  it, 
and  agreed  to  take  it  if  a  reduction  was  made,  and  thereafter, 
without  notice,  traded  the  house  and  lot  to  a  third  person, 
a  verdict  for  plaintiff  is  sustained  by  the  evidence.  Tubbs  v. 
Mackintosh,  31  Neb.  238,  47  N.  W.  854;  West  v.  Lynch,  1  City 
Ct.  R.  (N.  Y.)  225.    See  also  Sec.  434. 

One  who  employs  a  broker  to  negotiate  a  sale  can  not,  in 
an  action  for  commissions,  avail  himself  of  the  objection  that 
the  customer  is  not  able  to  pay  for  the  premises,  if  the  vendor 
has  accepted  the  customer  as  satisfactory  and  has  conveyed  the 
premises  to  him.  Travis  v.  Graham,  48  N.  Y.  S.  736,  23  App. 
Div.  214. 

Where  a  principal  in  an  exchange  of  properties  actually  re- 


COMMISSION    AND    COMPENSATION    OF   AGENTS.  295 

ceives  a  good  title  to  the  property  conveyed  to  him,  he  can 
not  defeat  an  action  by  his  broker  for  commissions  on  the 
ground  that  his  contract  of  sale  was  invalid.  Schlesinger  v. 
Jud,  70  N.  Y.  S.  616,  61  App.  Div.  453. 

Where  the  owner  enters  into  a  contract  authorizing  a  real 
estate  agent  to  sell  his  land  on  commission,  within  a  certain 
time,  he  can  not  revoke  the  authority  and  escape  liability  to 
the  agent,  if  he  secures  a  purchaser  before  the  time  limited, 
as  the  result  of  efforts  commenced  before  such  revocation. 
Blumenthql  v.  Gpodall^Sd  Cal.  251,  26  P.  906;  Glover  v.  Hen- 
derson, 170  Mo.  367,  25  S.  W.  175;  Stamets  v.  Dennison,  193 
Pa.  St.  548,  44  A.  575 ;  Harrison  v.  Angerson,  115  111.  App.  226. 
(There  are  authorities  holding  that  the  owner  has  power  to 
rescind,  subject  to  the  right  of  the  broker  to  bring  an  action 
for  breach  of  the  contract.) 

Where  a  broker  employed  to  bring  about  a  sale  of  real  es- 
tate, brought  to  the  owner  a  responsible  purchaser  willing  to 
take  the  premises  on  the  terms  outlined  by  the  owner,  the 
broker  was  entitled  to  his  commissions,  although  the  sale  fell 
through  because  the  owner  could  not  give  immediate  posses- 
sion as  he  had  agreed  to  do.  Putter  v.  Berger,  88  N.  Y.  S. 
462,  95  App.  Div.  62. 

Where  a  broker  has  lands  placed  in  his  hands  for  sale  at  a 
certain  price,  and  the  proposed  purchaser  does  not  want  the 
entire  tract,  and  the  broker  induces  an  employe  to  purchase 
what  remained,  and  the  principal,  to  escape  paying  commis- 
sions, conveys  the  whole  tract  to  the  employe,  who  conveys 
to  the  purchaser  the  portion  he  desires,  the  latter  assuming  a 
proportionate  amount  of  the  purchase  money  notes,  the  broker  is 
entitled  to  his  commissions.  Bogart  v,  McWilUams  (Tex.  Civ. 
App.  '95),  31  S.  W.  434;  Diamond  v.  Wheeler,  80  N.  Y.  S.  416, 
80  App.  Div.  58. 

The  principal  can  not  defeat  the  broker's  right  to  compen- 
sation by  arbitrary  or  wanton  refusal  to  consummate  the  sale. 
Merriman  v.  Wickersham,  141  Cal.  567,  75  P.  180 ;  Phelps  v. 
Prusch,  S3  Cal.  626,  23  P.  1111;  Nielson  v.  Lee,  60  Cal.  555  j 
Phelanv.  Gardner,  43  Cal- 306;  Millett  v.  Barth,  18  Colo.  112, 
31  P.  769 ;  Spalding  v.  Saltiel,  18  Colo.  86,  31  P.  486 ;  Finnerty 
V.  Fritz,  5  Colo.  174 ;  Wolver  v.  Shandy,  66  111.  App.  42 ;  Hecht 


296  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

V.  Hall,  62  111.  App.  100 ;  McGuire  v.  Carlson,  61  111.  App.  295 ; 
Flood  V.  Leonard,  44  111.  App.  113;  Beaton  v.  Clarke,  122 
Iowa,  716,  98  N.  W.  597 ;  Lewis  v.  Simpson,  122  Iowa,  663,  98 
N.  W.  508;  Collins  v.  Paddcn,  120  Iowa,  381,  94  N.  W.  905; 
Bird  V.  Phillips,  115  Iowa,  703,  87  N.  W.  414 ;  Houston  v.  Bo- 
agni,  McGloin  (La.),  164;  Sckivartz  v.  Yearly,  31  Md.  270; 
Gwinnup  v.  Sihert,  106  Mo.  App.  709,  80  S.  W.  589;  Reeves 
V.  Vette,  62  Mo.  App.  440;  Gaty  v.  i'^os^er,  18  Mo.  App.  639; 
Jones  V.  Stevens,  36  Neb.  849,  55  N.  W.  251 ;  Mooney  v.  Elder, 
56  N.  Y.  238;  Barnard  v.  Monnott,  1  Abb.  Dec.  (N.  Y.)  108, 
3  Keyes,  203,  33  How.  Pr.  440;  Snydam  v.  Healy,  87  N.  Y.  S. 
669,  93  App.  Div.  396;  Smith  v.  Smith,  1  Sweeney  (N.  Y.), 
552;  Hayne  v.  O'Connor,  1  SM^eeney  (N.  Y.),  472,  41  How. 
Pr.  287;  Simpson  v.  Smith,  36  Misc.  815,  74  N.  Y.  S.  849; 
York  V.  Nash,  42  Ore.  321,  71  P.  59 ;  Fisk  v.  Henare,  13  Ore. 
156,  9  P.  322;  Haskins  v.  Lewis,  30  Ohio  Cir.  Ct.  603;  Himt- 
emer  v.  Are?ii,  16  S.  D.  465,  93  N.  W.  653 ;  McLane  v.  Goode 
(Tex.  Civ.  App.  '02),  68  S.  W.  707;  Magill  v.  Stoddard,  70 
Wis.  75,  35  N.  W.  346;  Koch  v.  Emmerling,  63  U.  S.  (22  How.) 
69;  Greenwood  v.  Burton,  27  Neb.  808,  44  N.  W.  28;  Bond  v. 
^Yehster,  128  Wis.  118,  107  N.  W.  23;  Witherell  v.  Murphy, 
147  Mass.  417,  18  N.  E.  215. 

After  notice  that  the  broker  has  a  customer,  the  principal 
can  not  sell  to  another,  and  thus  escape  the  payment  of  the 

commission.     Phelan  v.    Gardner,.  43   Cal M6 ;   Shoivaker  v. 

Kelly,  21  Pa.  Super.  Ct.  390;  Sullivan  v.  Hampton  (Tex.  Civ. 
App.  '95),  32  S.  W.  235;  Frinck  v.  Gilhert  (Wash.  Sup.  '09), 
101  P.  1088.  But  see  Avhere  principal  refused  offer  and  sold 
to  same  party  for  twice  as  much,  and  broker  was  held  not 
entitled  to  commissions.  Gardner  v.  Pierce,  116  N.  Y.  S.  155. 
See  Sec.  15. 

The  refusal  of  the  wife  to  join  in  a  deed  of  conveyance  is 
insufficient  to  excuse  the  husband  and  principal  for  failing  to 
carry  out  the  sale  so  as  to  defeat  the  broker's  right  to  a  com- 
mission for  finding  a  purchaser.  Hamlin  v.  Schulte,  34  Minn. 
534,  27  N.  W.  301.  Goldberg  v.  Gelles,  68  N.  Y.  S.  400,  33 
Misc.  797;  Clapp  v.  Hughes,  1  Phila.  (Pa.)  382.  The  same 
rule  was  applied  where  the  sale  failed  because  the  husband 
and  wife   could  not  agree  as  to  a  division  of  the   purchase 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  297 

money.    Purdy  v.  Wilson,  130  Mo.  App.  150,  108  S.  W.  1124. 

Where  a  broker  found  a  purchaser  his  agency  closed,  and 
his  afterwards  taking  a  retainer  from  the  purchaser  to  see  that 
the  papers  were  properly  executed  presented  no  ground  for 
defeating  a  recovery  of  his  commissions.  Short  v.  Millard,  68 
111.  292.    See  also  Sec.  559. 

While  an  agency  for  the  sale  of  a  certain  lot  was  terminated 
by  a  sale  of  the  property  to  one  with  whom  the  agent  had 
commenced  negotiations,  this  did  not  defeat  the  agent's  right 
to  his  commissions.  Sylvester  v.  Johnson,  110  Tenn.  392,  75 
S.  W.  923. 

Where,  in  an  action  by  a  real  estate  broker  for  compensa- 
tion for  procuring  a  purchaser,  it  appeared  that  a  memoran- 
dum as  to  the  purchase  had  been  made  between  the  principal 
and  the  purchaser,  calling  for  the  execution  of  a  completed 
contract  at  a  specified  time  and  place,  evidence  was  admissible 
as  to  what  occurred  at  such  time  and  place,  showing  that  the 
non-execution  of  the  contract  was  due  to  the  principal.  Seid- 
man  v.  Banner,  99  N.  Y.  S.  862,  51  ]\Iisc.  10. 

A  broker's  right  to  compensation  is  "not  affected  by  fraudu- 
lent representations  made  to  the  principal  by  third  persons. 
Heaton  v.  Clarke,  122  Iowa,  716,  98  N.  W.  597.  Unless  they 
are  in  privity  with  the  broker.  Thwing  v.  Clifford,  136  ]Mass. 
482. 

Where  defendant  employed  plaintiff  to  sell  certain  standing 
timber,  and  dealt  as  though  he  was  the  owner,  he  could  not 
defeat  the  plaintiff's  right  to  commissions  on  a  sale  subse- 
quently made  to  a  purchaser  found  by  plaintiff,  by  showing 
that  at  the  time  plaintiff  was  employed  defendant  did  not  own 
the  land,  but  procured  full  title  thereto  before  he  sold  it  to 
such  purchaser.  McDonald  v.  Cahiness,  100  Tex.  615,  98  S. 
W.  943,  affirmed  102  S.  W.  721. 

Subsequent  dissatisfaction  of  the  principal  with  the  terms 
of  payment  to  which  she  had  agreed  and  on  which  the  broker 
was  authorized  to  sell  the  property,  or  with  the  terms  agreed 
on  with  the  purchaser  found  by  the  broker,  if  within  his  au- 
thority, does  not  justify  the  principal  in  refusing  to  complete 
the  transaction.  Fcnn  v.  Ware,  100  Ga.  563,  28  S.  E.  238; 
Miller  v.  Barth,  71  N.  Y.  S.  989,  35  Misc.  372. 


298  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

That  the  principal  is  ignorant  of  the  efforts  of  his  broker 
in  procuring  a  customer,  does  not  affect  the  broker's  right  to 
commissions.  Colonial  Trust  Co.  v.  Pacific  Packing  &  Nav. 
Co.,  158  Fed.  277,  85  C.  C.  A.  539. 

The  failure  of  a  prospective  purchaser  of  coal  lands  to  rely 
upon  the  owner's  representation  and  the  broker  employed  to 
find  a  purchaser  that  a  railway  had  consented  or  agreed  to 
construct  a  branch  railroad  into  such  lands,  does  not  defeat 
the  broker's  right  to  his  agreed  commissions,  where,  relying 
upon  such  representations  he  found  a  purchaser,  and  the  sale 
fails  because  of  their  inaccuracy.  Dotson  v.  Milliken,  209  U. 
S.  237,  52  L.  Ed.  768.    See  also  Sec.  165. 

A  broker  is  not  entitled  to  commissions  on  sales  made  by 
the  principal,  uninfluenced  by  the  broker.  Humphries  &  J . 
V.  Smith,  5  Ga.  App.  340,  63  S.  E.  248. 

Where  a  broker  has  procured  a  purchaser  for  land,  and 
while  his  agency  is  unrevoked,  and  he  is  still  negotiating  with 
a  purchaser  at  the  owner's  stipulated  price,  the  owner  sells 
through  another  broker,  the  original  broker,  is,  nevertheless, 
entitled  to  his  commissions.  Hovey  v.  Aaron,  113  S.  W.  718, 
133  Mo.  App.  573. 

"Where  brokers  procured  a  purchaser  for  premises  listed 
with  them  for  sale,  who  was  ready,  able  and  willing  to  buy 
the  premises  at  the  terms  named  by  the  owners,  and  the  pur- 
chaser and  owners  came  to  an  agreement,  the  brokers  were  en- 
titled to  a  commission  though  the  premises  were  not  sold  be- 
cause the  owners,  before  the  contract  was  signed,  raised  the 
price,  which  the  purchaser  would  not  pay.  Sotsky  v.  Ginsberg, 
114  N.  Y.  S.  114,  120  App.  Div.  441.    See  also  Sec.  55. 

A  party  can  not  defeat  his  obligation  to  pay  real  estate  com- 
missions by  voluntarily  cancelling  the  contract  of  purchase 
and  sale  obtained  by  the  real  estate  agent.  Myers  v.  Buell, 
142  111.  App.  467. 

Where  defendants,  real  estate  brokers,  agreed  to  procure  a 
purchaser  for  plaintiff's  property,  and  in  fact  procured  a  per- 
son who  executed  a  contract,  valid  on  its  face,  with  plaintiff 
for  an  exchange  of  property,  defendants  were  entitled  to  their 
commissions,  irrespective  of  whether  the  plaintiffs  misrepre- 
sented their  property  to  the  purchaser  so  as  to  justify  him 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  299 

in  refusing  to  carry  out  the  exchange.     Lewis  v.   Mansfield 
Grain  &  Elevator  Co.  (Tex.  Civ.  App.  '09),  121  S.  W.  585. 

The  fact  that  the  one  who  was  employed  to  procure  a  pur- 
chaser of  real  estate  violated  his  contract  of  employment  with 
a  third  person  engaged  in  the  banking  and  real  estate  business 
did  not  defeat  his  right  to  recover  his  commissions  from  the 
owner  on  procuring  a  purchaser.  Pomerici  v.  Bosenbloom,  120 
N.  Y.  S.  756. 


CHAPTER  V. 


SECTION. 

SECTION. 

455.     Deals. 

459. 

Failure  of  sale  by  defect  in 

456,     Excess  in  price  as  compensa- 

title. 

tion. 

460. 

Failure  of  purcbaser  to  car- 

457.    Failure  of  broker  to  sell. 

ry  out  contract. 

458.     Failure  to  consummate  con- 

461. 

Failure  of  consideration. 

tract  of  sale. 

462. 

Forfeitures. 

Sec.  455.    Deals. 

"Where  an  owner  of  real  estate  asks  a  real  estate  broker  "to 
get  a  deal,"  it  is  not  necessary  for  the  real  estate  broker  to 
assent  in  words;  if  he  procures  a  purchaser  he  makes  a  con- 
tract by  performance  and  is  entitled  to  commissions.  Lamb 
V.  Prettyman,  33  Pa.  Super.  Ct.  190. 

Evidence  was  held  to  show  that  a  contract  by  which  plain- 
tiff was  employed  to  procure  contemplated  exchanges  of  real 
estate  was  a  severable  contract,  and  that  the  carrying  out  of 
one  of  the  deals  entitled  the  plaintiff  to  a  commission,  without 
regard  to  the  other  prospective  deals.  Goodspeed  v.  Millery 
98  Minn.  457,  108  N.  W.  817.  See  also  Sec.  496.  Mechem  on 
Ag.  Sec.  634. 

Sec.  456.    Excess  in  price  as  compensation. 

A  real  estate  agent  employed  to  sell  land  for  a  certain  net 
price  is  not  entitled,  in  the  absence  of  "a  contract  therefor,  to 
any  excess  over  such  price  that  he  may  obtain  for  the  land, 
there  being  no  contract  to  that  effect.  Snow  v.  McFarlane, 
51  111.  App.  448;  Turnley  v.  Michael  (Tex.  Civ.  App.  '91),  15 
S.  W.  912;  Kellogg  v.  Keeler,  27  111.  App.  244.  Compare 
Downing  Inv.  Co.  v.  Meyer  (Okla.  Sup.  '07),  91  P.  846. 

In  an  action  for  the  violation  of  duties  due  to  plaintiff  as 

broker,  it  appeared  that  defendant  informed  plaintiff  that  he 

had  certain  lots  for  sale  at  $17,500;  the  lots  had  been  placed 

in  defendant's  hands  by  E.,  another  broker,  with  whom  they 

300 


COMMISSION    AND    COMPENSATION    OF    AGENTS.  301 

had  been  placed  by  the  owner,  and  the  price  asked  by  defend- 
ant was  that  fixed  by  the  owner;  plaintiff  refused  to  buy  at 
that  price  and  offered  $13;000;  defendant  reported  the  bid  to 
E.,  who  was  informed  by  the  owner  that  he  could  have  the 
lots  at  $12,000,  without  commissions;  E.  then  instructed  de- 
fendant to  offer  the  lots  to  plaintiff  at  $14,000,  which  offer 
plaintiff  accepted,  and  defendant  then  procured  a  contract, 
and  reported  that  he  had  bought  the  property  for  plaintiff. 
Held,  that  the  evidence  did  not  show  that  defendant  was  em- 
ployed by  plaintiff  so  as  to  make  him  liable  for  the  difference 
between  the  price  at  which  the  owner  was  willing  to  sell  and 
the  price  asked.  Lazarus  v.  Sands,  27  N.  Y.  S.  885,  33  N.  Y. 
S.  855,  7  Misc.  282,  12  Misc.  575.    See  also  Sec.  25. 

Under  a  contract  empowering  a  real  estate  broker  to  sell 
property  for  a  certain  sum,  and  providing  that  he  should  have 
as  commissions  all  that  he  could  get  for  the  property  above 
the  price  named,  he  was  entitled  to  commissions  only  in  the 
event  of  procuring  a  consummation  of  the  sale,  and  not  on 
procuring  the  execution  of  a  contract  of  sale  which  was  never 
performed.     Munroe  v.  Taylor,  191  Mass.  483,  78  N.  E.  106. 

The  owner  of  land  agreed  to  pay  a  broker  five  per  cent, 
commission  if  he  found  a  purchaser  who  would  pay  him  $3,000 ; 
thereafter  the  owner  went  away,  but  before  leaving  told  the 
broker  to  consult  C,  and  deal  with  him  in  the  owner's  place; 
subsequently  C.  authorized  a  sale  for  $3,000  net  to  the  owner, 
agreeing  that  the  broker  might  have  anything  above  that;  the 
owner  was  informed  of  a  sale  made  for  $3,500,  the  contract 
calling  for  a  good  title,  but  refused  to  execute  a  proper  deed. 
Held,  that  the  broker  was  entitled  to  recover  $500.  Foster  v. 
Taijlor,  44  Wash.  313,  27  Pac.  358. 

Where  a  broker  agreed  with  the  owner  of  land  to  sell  it, 
and  that  all  above  a  certain  price  should  be  divided  between 
them,  and  advised  her  to  sell  below  the  price  named  after  a 
certain  time,  on  the  ground  that  the  lands  were  not  worth 
more,  and  effected  a  sale  after  the  death  of  the  owner  for  her 
executor  at  a  price  which  left  nothing,  under  the  agreement 
with  the  decedent,  to  be  divided,  a  claim  against  the  executor 
for  commissions  could  not  be  allowed.  In  re  French's  Est., 
101  N.  Y.  S.  734.  51  Misc.  457. 


302  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

Where  an  owner  promised  and  agreed  to  pay  a  broker  as 
a  commission  for  procuring  a  tenant,  ' '  all  you  get  above  $2,000 
per  year,"  and  the  broker  rents  the  premises  for  five  years  at 
an  annual  rental  of  $2,200,  he  was  entitled  to  the  excess  over 
$2,000  each  year  during  the  life  of  the  lease,  and  not  merely 
for  one  year.  Goldstein  v.  B'Arcy,  201  Mass.  312,  87  N.  E. 
584.     See  also  Sec.  212.     Compare  Sec.  207. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
to  receive  as  commissions  any  sum  in  excess  of  $45  per  acre, 
can  not  recover  commissions,  where  the  owner  sold  the  land 
at  $45  per  acre,  in  the  absence  of  a  showing  that  the  sale  was 
made  in  fraud  of  the  broker's  rights,  though  he  claimed  that 
he  could  have  sold  for  $50  per  acre.  Cooh  v.  Whiting  (Iowa 
Sup.  '09),  122  N.  W.  835. 

A  broker  employed  to  procure  a  purchaser  willing  to  pay 
$16,000  net,  for  a  commission  of  whatever  was  obtained  in 
excess  of  tkat  sum,  who  procured  a  purchaser  willing  to  pay 
$16,500,  on  the  condition  that  the  owner  pay  to  a  third  per- 
son as  purchaser's  agent,  for  his  compensation  in  the  transac- 
tion, two  and  one-half  per  ceiit.  thereof,  did  not  comply  with 
the  contract  of  employment  and  could  not  recover  commissions. 
Slaijback  v.  Wetzel  ^Mo.  App.  '09),  123  S.  W.  982. 

Sec.  457.     Failure  of  broker  to  sell. 

Where  a  broker  brought  a  prospective  purchaser  before  the 
owner  of  land,  and  the  prospective  purchaser,  upon  being  told 
the  price,  left  without  taking  any  action,  the  broker  was  not 
entitled  to  a  commission,  since  he  had  not  furnished  a  pur- 
chaser ready,  able  and  willing  to  buy  on  the  seller's  terms. 
Innes  v.  Bogan,  41  Colo.  9,  91  P.  1108. 

Sec.  458.     Failure  to  consummate  conlract  of  sale. 

To  entitle  a  real  estate  broker  to  his  commission  he  must 
produce  a  person  who  actually  purchases  the  property  by 
complying  with  the  terms  agreed  upon,  unless  his  failure  to 
do  so  is  caused  by  the  fault  of  the  vendor.  Richards  v.  Jack- 
son, 31  Md.  250;  Fox  v.  Regan,  240  111.  391,  88  N.  E.  974; 
Briggs  v.  Roii'e,  1  Abb.  Dec.  (N.  Y.)  189,  4  Keyes,  424;  Bur- 
nett V.  Eddling,  19  Tex..  Civ.  App.  711,  48  S.  W.  775 ;  Parker 


COMMISSION    AND    COMPENSATION    OF    AGENTS.  303 

V.  Nat.  Bdg.,  etc.,  Assn.,  55  W.  Va.  134,  46  S.  E.  811 ;  Hugill 
V.  WeeMy,  64  W.  Va.  210,  61  S.  E.  360,  15  L.  R.  A.  N.  S.  1262; 
Hamherger  v.  Thomas  (Tex.  Civ.  App.  '09),  118  S.  W.  770; 
Dot  son  V.  Millikin,  200  U.  S.  237. 

Where  the  owner  of  land  authorized  real  estate  agents  to 
sell  land  purchased  by  him,  and  informed  them  that  he  had 
no  deed  for  the  same,  but  held  it  under  a  contract,  and  the 
agents  made  a  contract  for  a  sale  of  the  land,  but  the  pur- 
chaser refused  to  complete,  because  the  vendor  had  only  a  con- 
tract of  purchase,  there  being  no  other  defect  in  the  title,  it 
was  held  that  the  agents  were  not  entitled  to  recover  the  agreed 
commissions  on  the  sale,  as  it  proved  abortive  without  any 
fault  on  the  part  of  their  principal.  Hoyt  v.  Shipherd,  70  111. 
309. 

Where  a  broker  was  employed  to  sell  a  whole  tract  of  land, 
or  a  part  thereof,  and  after  negotiations  the  broker  failed  to 
make  a  sale,  and  an  attempt  was  made  to  discharge  him,  but 
he  continued  his  negotiations,  subsequently  the  owner  sold  a 
portion  of  the  tract  to  a  person  with  whom  the  broker  had 
prior  negotiations ;  the  owner  was  held  liable  to  pay  the  broker 
a  proportionate  commission.  Diamond  v.  Wheeler,  80  N.  Y. 
S.  416,  80  App.  Div.  58;  Bogart  v.  McWilliams  (Tex.  Civ. 
App.  '95),  31  S.  W.  434. 

A  broker  employed  to  procure  a  loan  on  real  estate  is  not 
entitled  to  compensation  merely  because  a  lender  was  found 
who  agreed  to  make  the  loan,  subject  to  the  conditions,  "title, 
etc.,  being  found  ultimately  satisfactory,"  but  who  declined 
to  make  the  loan  after  an  examination  of  defendant's  title  to 
the  real  estate.  Chambers  v.  Ackley,  91  N.  Y.  S.  78;  Gatling 
V.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App.  D.  50. 

An  owner  employed  a  broker  to  procure  a  purchaser  for 
described  real  estate  for  a  specified  sum  at  a  specified  com- 
mission; the  broker  procured  a  third  person  to  make  an  offer, 
which  the  owner  accepted,  and  the  two  entered  into  a  contract 
for  an  exchange  of  properties ;  the  broker  testified  that  the 
owner  stated  that  if  he  could  get  a  third  person  to  agree  to 
give  a  specified  number  of  lots  and  a  mortgage  back  of  a 
specified  sum  the  owner  would  pay  a  specified  sum  for  com- 
I missions:  the  agreement  for  an  exchange  was  not  carried  out 


304  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

because  of  a  defect  in  the  title  of  the  third  person,  which 
the  broker  attempted  to  cure.  Held,  that  the  broker  was 
not  entitled  to  commissions,  none  being  earned  unless  a  trans- 
fer was  made.  Keating  v.  Ilealey,  147  Mich.  279,  110  N.  W.  943, 
13  D.  L.  N.  1035. 

An  owner  employed  a  broker  to  procure  a  purchaser  of  his 
land;  the  broker  procured  a  purchaser  who  contracted  with 
the  owner  for  the  purchase;  the  purchaser  was  unable  to  pay 
the  cash  necessary  to  consummate  the  sale,  and  he  depended 
on  a  third  person  with  whom  he  had  contracted  to  buy  the 
property,  and  who  was  to  furnish  the  cash  to  make  the  first 
payment;  the  sale  was  not  made,  and  the  owner  cancelled  the 
contract.  Held,  that  it  was  not  necessary  for  the  broker,  in 
order  to  recover  his  commissions,  to  prove  that  the  purchaser 
was  able,  independently  of  the  third  person,  to  make  the  cash 
payment,  and  if  the  purchaser  could  have  procured  the  money 
from  the  third  person,  and  if  the  failure  to  complete  the  sale 
resulted  from  the  fault  of  the  owner,  the  commission  was 
earned.  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627. 
Compare  Fox  v.  Demargo  Land  Co.,  37  Colo.  203,  86  P.  344; 
Harmon  v.  Enright,  107  Mo.  App.  560,  81  S.  W.  1180;  Butler 
V.  Baker,  17  R.  I.  582,  23  A.  1019. 

A  real  estate  agent  executed,  in  duplicate,  a  contract  of  sale 
in  excess  of  his  authority  and  delivered  one  copy  to  the  pur- 
chaser, and  sent  one  to  the  principal  with  a  request  that  the 
latter  have  his  wife  sign  it;  the  purchaser  had  no  knowledge 
that  there  was  another  copy  of  the  contract,  sending  at  differ- 
ent times  to  the  agent  various  propositions  for  a  modification 
of  the  contract;  the  principal  knew  that  the  purchaser  and 
the  agent  were  in  communication,  and  the  former  was  charge- 
able with  knowledge  that  the  terms  of  the  contract  exceeded 
the  agent's  authority.  Held,  that  the  principal's  failure  to 
communicate  with  the  purchaser  was  not  a  ratification.  Strong 
V.  Ross,  33  Ind.  App.  586,  71  N.  E.  918.    See  also  Sec.  618. 

Sec.  459.     Failure  of  sale  by  defect  in  title. 

A  contract  of  employment  may  be  so  drawn  as  to  deprive 
the   broker  of  the   right  to   a   commission,   if   the   transaction 


COMMISSION    AND    COMPENSATION    OP    AGENTS.  305 

should  fall  through  because  of  a  defect  in  the  principal's  title. 
Louisville,  etc.,  E.  Co.  v.  Shepard,  126  Ala.  416,  28  S.  202. 

Sec.  460.     Failure  of  purchaser  to  carry  out  the  contract. 

If  the  principal  and  the  customer  found  by  the  broker  en- 
ter into  a  valid  contract,  and  the  purchaser  fails  to  make  the 
deferred  payments  and  surrenders  possession  to  the  vendor, 
the  broker  is  not  deprived  of  his  right  to  a  commission  for 
making  the  sale.  ^gAnwald  v,  Cq£Uk^%  <^f^l  83,  .28  P.  lOlj 
HallecJc  v.  Hinckley,  19  Colo.  38,  34  P.  479;  Lester  v.  Norton, 
43  Conn.  219;  Moss  v.  Wren  (Tex.  Sup.  '08),  118  S.  W.  149; 
Friestedt  v.  Dietrich,  84  111.  App.  604;  Jenkins  v.  Hollings- 
worth,  83  111.  App.  139 ;  Greene  v.  Hollingshead,  40  111.  App. 
195 ;  McConaughy  v.  Mahannak,  28  111.  App.  169 ;  Love  v. 
Miller,  53  Ind.  294;  Micks  v.  Stevenson,  22  Ind.  App.  475,  51 
N.  E.  492;  Pearson  v.  Mason,  120  Mass.  53;  Love  v.  Oivens, 
31  Mo.  App.  501;  Lanney  v.  Healey,  56  Neb.  313,  76  N.  W. 
558;  Seabury  v.  Fidelity,  etc.,  Ins.  Co.,  205  Pa.  St.  234,  54  A. 
898 ;  Hippie  v.  Laird,  189  Pa.  St.  472,  42  A.  46 ;  Bach  v.  Erne- 
rich,  35  N.  Y.  Super.  Ct.  548;  Heinrich  v.  Kern,  4  Daly  (N. 
Y.),  74;  Thain  v.  Philbreck,  74  N.  Y.  S.  856,  36  Misc.  829; 
Rosenberg  v.  Smith,  55  N.  Y.  S.  528,  25  Misc.  774.  See  also 
Sec.  449. 

Sec.  461.    Failure  of  consideration. 

Partial  failure  of  consideration  is  no  defense  to  an  action 
on  a  note  executed  and  delivered  by  the  vendee  to  the  broker 
for  a  commission  for  making  a  sale  or  exchange  of  real  estate. 
Wade  v.  Bishop,  5  Ohio  Superior  &  C.  PI.  Dec.  625. 

Defendant  executed  two  notes  for  $385  each  in  payment  of 
a  commission  for  selling  land,  and  payable  only  in  the  event 
that  the  vendee  of  the  land  remained  on  it  for  one  year  and 
made  improvements  equal  in  value  to  the  notes;  the  vendees 
plowed  one  hundred  acres,  which  increased  its  value  $2.50  per 
acre,  erected  buildings,  constructed  drainage  worth  $75,  and 
a  levee  worth  $64,  but  with  the  consent  of  defendant,  to  whom 
they  executed  a  reconveyance,  abandoned  the  premises  before 
the  expiration  of  a  year.  Held,  that  a  finding  that  there  was 
no  failure  of  consideration  for  the  note  was  proper.     Easton 


306  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Paching  Co.  v.  Kennedij,  131  Cal.  23,  63  P.  130;  Webster  v. 
Holmes,  174  Mass.  410,  54  N.  E.  872. 

Sec.  462.    Forfeitures. 

The  plaintiff,  a  real  estate  broker,  having  in  his  hands  cer- 
tain property  of  the  defendant  for  sale  or  exchange,  arranged 
for  an  exchange  with  C,  and  a  contract  was  executed  by  C. 
and  the  defendant,  by  which  each  was  to  take  immediate  pos- 
session of  the  other's  property,  and  on  or  before  a  day  fixed 
was  to  convey  his  property  to  the  other  by  warranty  deed; 
and  if  either  should  fail  to  perform,  he  was  to  pay  the  other 
$500  as  liquidated  damages;  C.  failed  to  perform,  without 
fault  on  the  part  of  the  defendant.  Held,  that  the  plaintiff 
was  entitled  to  his  commissions;  the  defendant  having  agreed 
to  accept  $500  in  lieu  of  performance,  would  not  be  allowed 
to  deny  as  against  the  plaintiff  that  that  payment  was  equiva- 
lent to  performance.  Leete  v.  Norton,  43  Conn.  219 ;  criti- 
cized, Rieger  v.  Bigger,  29  Mo.  App.  421 ;  Parker  v,  Estahrook, 
68  N.  H.  349,  44  A.  484.  Contra,  Kimberly  v.  Henderson,  29 
Md.  512. 

H.,  a  real  estate  broker,  having  heard  that  K.  desired  to  sell 
certain  property,  M^ent  to  his  office  and  informed  him  that  in 
case  he  succeeded  in  negotiating  a  sale  he  should  expect  the 
usual  commissions;  afterward  H.  brought  K.  and  J.  together 
and  certain  papers  were  executed  whereby  they  contracted  for 
a  sale  of  the  property,  with  a  stipulation  that  if  either  party 
should  fail  to  comply  with  the  contract,  a  forfeiture  of  $1,000 
should  be  paid  by  the  party  in  default;  J.  failed  to  comply 
with  the  contract  and  gave  his  note  for  the  forfeit  money. 
Held,  that  H.  was  not  entitled  to  a  commission.  Kimberly  v. 
Henderson,  29  Md.  512.  Contra,  Leete  v.  Horton,  43  Conn. 
219 ;  Parker  v.  Estabrook,  68  N.  II.  349,  44  A.  484. 

A  broker  is  not  injured  by  the  cancellation,  without  his  con- 
sent, of  a  contract  of  purchase,  and  derived  from  it  no  cause 
of  action  against  the  vendor,  where  the  broker  had  agreed  with 
the  vendor  that  he  (the  broker)  should  not  be  entitled  to  a 
commission  until  the  purchaser  fully  completed  the  transac- 
tion ;  the  agreed  payment  was  made  and  a  contract  of  sale 
executed,  but  the  purchaser  defaulted  in  making  the  first  de- 


COMMISSION    AND   COMPENSATION   OP   AGENTS.  307 

ferred  payment,  as  a  result  of  which  the  vendor  became  en- 
titled, under  the  contract  of  purchase,  to  declare  a  forfeiture. 
Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  A.  D. 
119. 

Where  a  purchaser  agrees  absolutely  to  buy  the  property,  the 
broker  can  not  be  deprived  of  the  commission  because  the  price 
is  payable  in  installments  where  the  vendor  has  the  right  to 
declare  a  forfeiture  on  default  of  payment  of  any  installment, 
exercises  the  same  and  retains  the  payments  made.  Stewart 
v.  Fowler,  53  Kan.  537,  36  P.  1002;  Willes  v.  Smith,  77  Wis. 
81,  45  N.  W.  666 ;  Betz  v.  Williams,  etc.,  Land  Co.,  46  Kan.  45, 
26  P.  456.  • 

A  broker  may,  by  agreement,  forfeit  his  right  to  a  commis- 
sion in  case  a  purchaser  defaults  in  carrying  out  his  contract. 
Seymour  v.  St.  Luke's  Hospital,  50  N.  Y.  S.  989,  28  App.  Div. 
119.  Where  a  customer  obtained  by  a  broker  refuses  to  carry 
out  the  contract  of  sale  entered  into  with  the  vendor,  the  broker 
does  not  forfeit  his  right  to  a  commission  by  the  fact  that,  on 
such  refusal,  he  procures  another  customer  and  states  to  his 
principal  that  he  expects  no  commission  on  the  previous  sale. 
Beach  v.  Emerich,  35  N.  Y.  Super.  Ct.  548. 

Where  a  contract  for  the  purchase  of  land  accorded  to  the 
purchaser  the  right  to  "back  out,"  on  paying  a  forfeiture, 
the  vendor  can  not  recover  damages  from  the  agents  on  ac- 
count of  their  having,  by  false  representations,  induced  the 
purchasers  to  forfeit  the  contract.  Hetzler  v.  Morrell,  82  Iowa, 
562,  48  N.  W.  938. 

If  an  agent  or  broker  employed  to  transact  a  particular 
business  is  guilty  of  bad  faith  to  his  principal,  he  thereby 
forfeits  his  right  to  commissions.  Bunn  v.  Kerch,  214  111. 
259,  73  N,  E.  419.  The  right  of  one  employing  a  broker  to 
procure  a  purchaser  for  his  land  to  recover  from  the  broker 
the  forfeit  money  paid  by  the  intending  purchaser  failing  to 
complete  the  purchase  is  not  affected  by  a  custom  that  forfeit 
money  belongs  to  the  broker,  the  owner  not  contracting  with 
reference  thereto,  M.  L.  Chambers  c&  Co.  v.  Herring  (Tex. 
Civ.  App.  '05),  88  S.  W.  371. 

An  agent  employed  by  A.  and  B.  to  purcliase  land,  made  a 
purchase  and  took  a  conveyance  to  himself,   and  afterwards 


308  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

obtained  from  A.  his  interest  in  the  land.  Held,  that  B.  did 
not,  by  neglecting  to  pay  his  share  of  the  purchase  money  at 
the  stipulated  time,  forfeit  his  right  to  a  conveyance  from  the 
agent.  Hutchinson  \.  Hutchinson,  4  Desau.  (S.  C.)  77.  Com- 
pare First  Bank  v.  Bissell,  2  McCrary  (U.  S.),  73.  Compare  Sec. 
368. 


CHAPTER  VI. 


SECTION. 

463.     Financial  conditions. 

Financial  responsibiIit|f  of 
purchaser. 

Finding  a  purchaser. 

Gratuities. 

Goods  exchanged  for  land. 

Broker  entitled  to  commis- 
sions in  stock  of  insur- 
ance  company. 

Broker  entitled  to  commis- 
sions though  sale  en- 
joined. 

Broker  not  entitled  to  full 
commissions  till  price 
paid. 

Broker  not  informing  prin- 
cipal of  customer  defeats 
commissions. 

Knowledge  of  broker  that 
principal  owns  but  part 
of  property  does  not  de- 
feat commissions. 

Litigation  by  third  persons 
does  not  defeat  commis- 
sions. 

Methods  of  earning  commis- 
sions by  broker. 


464. 

465. 
466. 
467. 
468. 


469. 


470. 


471. 


472. 


473. 


474. 


SECTION. 

474a.  Broker  employed  to  sell  real 
estate  not  required  to 
prepare  contract  of  pur- 
chase. 

475.  Broker    as    middleman    may 

recover  commissions  from 
each. 

476.  Sale  of  mine,  not  within  de- 

scription,     defeats     com- 
missions. 

477.  Modification,  not  assented  to 

by   broker,    does    not    de- 
feat. 

478.  Modification       in       broker's 

presence  did  not  affect. 

479.  Modification   by    performing 

other      services      modifies 
right  to  commissions. 

480.  Broker     agreeing     to     take 

stock,  can  not  recover  in 
money. 

481.  Net   price   to   owner,   broker 

does  not  take  excess. 

482.  Net  price  to   owner,   broker 

selling   thereat    not   enti- 
tled to  any  commissions. 


Sec.  463.     Financial  conditions. 

The  fact  that  the  principal  cures  the  defect  in  his  title, 
does  not  deprive  the  broker  of  his  right  to  a  commission,  where 
the  principal  gave  no  notice  that  the  defect  was  cured  until  six 
months  after  the  customer  was  procured,  at  which  time  the 
customer  refused  to  make  the  loan  because  of  changed  finan- 
cial conditions.  Clark  v.  Henry  G.  Thompson,  etc.,  Co.,  75 
Conn.  161,  52  A.  720. 

309 


310  AMERICAN    I-AW    KEAL   ESTATE    AGENCY. 

Sec.  464.     Financial  responsibility  of  purchaser. 

Wliere  the  proposed  purchaser  was,  at  the  time  of  the  sign- 
ing of  the  contract  of  sale,  ready  to  make  the  payment  then 
due,  the  broker  is  not  required  to  show  that  the  purchaser 
had  sufficient  funds  on  hand  at  that  time  to  make  the  final 
payment.  Levy  v.  Unff,  23  N.  Y.  S.  1002,  2  Misc.  180 ;  McDer- 
mott  V.  Mahoney  (Iowa  Sup.)  106  N.  W.  925,  affirmed  on 
rehearing,  115  N.  W.  82. 

The  fact  that  a  purchaser  is  insolvent  does  not  defeat  the 
broker's  right  to  a  commission,  where  a  cash  payment  is  not 
required,  and  the  contract  of  sale  contemplates  that  the  ven- 
dor is  to  be  secured  by  a  bond  and  deed  of  trust,  which  the 
purchaser  is  prepared  to  deliver.  Ross  v.  FicMing,  11  App. 
Cas.  (D.  C.)  442. 

Where  the  proposed  purchaser  admits  that  he  had  not  the 
ability  to  pay  the  price  fixed,  his  testimony  that  he  was  acting 
in  behalf  of  a  syndicate,  and  that  he  would  have  been  pre- 
pared when  the  time  for  payment  came,  to  find  the  money 
required,  does  not  show  his  ability  to  buy.  Harmon  v.  En- 
right,  107  Mo.  App.  560,  81  S.  W.  1180;  Butler  v.  Baker,  17 
R.  I.  582,  23  A.  1019;  Fox  v.  Demargo  Land  Co.,  37  Colo. 
203,  86  P.  344.  Compare  Clark  v.  Wilson,  41  Tex.  Civ.  App. 
450,  91  S.  W.  627. 

Where  a  broker,  under  a  general  contract  of  employment 
to  sell,  real  estate,  obtained  a  purchaser  satisfactory  to  his 
principal,  who  made  an  enforceable  contract  of  sale,  without 
being  induced  to  do  so  by  any  representations  of  the  broker 
as  to  the  purchaser's  responsibility,  and  without  any  bad  faith 
on  the  broker's  part,  the  latter  was  entitled  to  commissions, 
though,  without  the  principal's  fault,  the  vendee  failed  to 
perform  the  contract,  solely  because  of  the  lack  of  sufficient 
financial  responsibility  at  the  time  the  contract  was  executed. 
Alt  V.  Dosher,  92  N.  Y.  S.  439,  102  App.  Div.  344,  affirmed 
186  N.  Y.  566,  79  N.  E.  1100;  Fox  v.  Ryan,  240  111.  391,  88  N. 
E.  974;  Glade  v.  Eastern  III.  Min.  Co.,  129  Mo.  App.  443, 
107  S.  W.  1002;  Brand  v.  Nagle,  107  N.  Y.  S.  156,  122  App. 
Div.  490.  Compare  Dotson  v.  Millikin,  27  App.  Cas.  (D.  C.) 
500.     See  also  Sec.  192. 

The  broker  must  show  that  the  purchaser  is  able  to  make 


COMMISSION   AND  COMPENSATION   OF  AGENTS.  311 

the  exchange,  and  this  ability  is  not  proved  by  the  mere  pro- 
duction of  deeds  on  his  part,  without  some  showing  that  he 
also  had  title  to  the  properties  he  was  willing  to  deed.  His 
ability  does  not  depend  upon  general  financial  standing,  but 
upon  his  being  the  owner  of  the  land  it  was  proposed  to  ex- 
change.   Herscher  v.  Wells,  103  111.  App.  418. 

Where  a  principal  accepts  a  purchaser  found  by  his  broker, 
without  questioning  his  ability  to  perform,  and  the  sale  fails 
of  consummation  by  the  principal's  own  fault  or  failure  to 
make  good  his  offer,  the  burden  is  on  him,  in  order  to  defeat 
the  broker's  right  to  compensation,  to  show  the  purchaser's 
want  of  financial  ability.  Dotson  v.  Milliken,  27  App,  (D.  C.) 
500.  Compare  Alt  v.  Doscher,  92  N.  Y.  S.  439,  102  App.  Div. 
344 ;  Glade  v.  Eastern  111.  Min.  Co.,  129  ]VIo.  App.  443 ;  Brand 
V.  Nagle,  107  N.  Y.  S.  156,  122  App.  Div.  490.  See  also  Sees. 
192,  499. 

In  an  action  for  a  broker's  commissions,  evidence  concern- 
ing arrangements  made  by  the  purchaser  procured  for  funds 
with  which  to  complete  the  purchase,  and  the  financial  ability 
of  the  concern  from  which  funds  were  to  be  secured  was  ad- 
missible. Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S. 
W.  664;  CzarnoivsU  v.  Holland,  5  Ari.  119,  78  P.  890;  Clark 
V.  Wilson,  41  Tex.  Civ.  App.  450,  91  S.  W.  627;  Fox  v.  De- 
margo  Land  Co.,  37  Colo.  203,  86  P.  344. 

Where  a  vendor  of  land  is  not  influenced  by  misrepresen- 
tations of  his  broker  as  to  the  financial  condition  of  his  ven- 
dee, such  misrepresentations  do  not  constitute  a  ground  for 
refusing  to  pay  the  broker's  commissions.  Irwin  v.  Mowbray, 
5  N.  Y.  S.  430. 

A  broker  obtained  a  customer  who  contracted  for  the  pur- 
chase of  the  property.  Before  the  time  fixed  for  performance 
the  purchaser  failed  to  obtain  an  extension  of  time  asked  for, 
because  of  his  inability  to  procure  funds.  The  purchaser,  on 
ascertaining  that  the  broker  did  not  have  the  deed  in  his  pos- 
session on  the  day  fixed  for  performance,  tendered  the  price 
and  demanded  the  deed.  The  purchaser  induced  a  bank  to 
make  the  tender,  with  the  understanding  that  the  identical 
money  would  be  returned.  The  tender  was  made  by  the  bank's 
clerks.     The  purchaser,  on  being  subsequently  given  an  op- 


312  AMERICAN   liAW   REAL   ESTATE   AGENCY. 

portunity  to  purchase  on  the  same  terms  refused  to  do  so, 
though  the  property  was  worth  more  than  the  agreed  price. 
Held,  to  show,  as  a  matter  of  law,  that  the  purchaser  was  not 
able  and  ready  to  comply  with  the  terms  of  his  agreement, 
defeating  a  recovery  by  the  broker  of  his  commissions.  Little 
V.  Ilerzinger,  34  Utah,  337,  97  P.  639. 

It  was  not  neeessarj'-,  in  order  to  entitle  a  real  estate  broker 
to  commissions  for  land  sold,  that  the  purchaser  should  be 
able  to  perform  at  the  time  the  contract  was  signed,  but  only 
at  the  time  fixed  for  passing  title.  Joffe  v.  Nagel,  114  N.  Y. 
S.  905. 

A  broker  employed  to  procure  a  purchaser  of  real  estate, 
who  procures  a  purchaser  capable  and  willing  to  contract  to 
purchase,  and  who  does  not  warrant  the  financial  ability  of 
the  purchaser,  and  who  is  not  guilty  of  any  fraud,  earns  his 
commissions  on  the  vendor  and  purchaser  entering  into  a  bind- 
ing contract  of  sale  and  purchase,  though  a  sale  is  not  con- 
summated because  of  the  failure  of  the  purchaser  to  perform,  for 
the  vendor  takes  the  responsibility  of  accepting  the  proposed  pur- 
chaser, and,  in  the  absence  of  contract,  the  broker  need  not  see 
that  the  purchase  money  is  paid,  nor  enforce  the  contract  of  sale. 
Moore  v.  Irvin,  89  Ark.  289,  116  S.  W.  662. 

After  a  broker  had  negotiated  a  sale  of  land,  and  the  pros- 
pective purchaser  had  been  unable  to  obtain  a  loan  with  which 
to  make  the  first  payment,  the  owner's  agent  and  the  pur- 
chaser declared  the  deal  off.  Subsequently  the  agent  gave  the 
broker  an  extension  of  time  in  which  to  procure  the  loan  of 
$7,000,  to  be  secured  by  mortgage  on  the  land,  but  he  was 
able  only  to  obtain  a  conditional  verbal  promise  from  one  per- 
son to  advance  $6,500,  secured  by  mortgage  on  the  land,  and 
an  indefinite  arrangement  with  a  banker  to  lend  $500  on  personal 
security,  on  the  usual  terms  of  bank  loans.  Held,  that  he  had 
failed  to  comply  with  the  terms  of  the  extension,  and  the  agent 
and  purchaser  were  justified  in  refusing  to  proceed  further, 
even  if  the  purchaser  was  bound  by  the  agent's  assent  to  the 
extension  of  time.  Jones  v.  Buck  (Iowa  Sup.  '09),  120  N. 
W.  112. 

Where  a  broker  employed  to  sell  property  on  specified  terms 
to  designated  persons,  effects  a  sale  to  them  on  such  terms,  he 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  313 

need  not,  in  an  action  for  his  commissions,  show  that  they  were 
able  to  make  the  purchase,  Stoutenhurg  v.  Evans  (lovva  Sup. 
'09),  120  N.  W.  59. 

A  real  estate  broker  need  not  show,  in  order  to  recover  com- 
missions, that  he  produced  a  purchaser  with  legal  tender  in 
hand,  but  only  that  the  purchaser  was  ready,  willing  and  pe- 
cuniarily able  to  pay  for  the  property  within  the  time  fixed, 
and  it  is  sufficient  if  the  purchaser  has  arranged  so  that  the 
money  will  be  available  for  payment  when  the  deed  is  deliv- 
ered, though  part  of  it  is  obtained  from  a  mortgage  on  the 
purchased  property  executed  contemporaneously  with  the  deed 
to  the  purchaser.  McCabe  v,  Jones  (Wis.  Sup.  '10),  124  N. 
W.  486. 

"Where  an  offer  to  exchange  certain  property  contained  an 
agreement  binding  defendant  to  pay  plaintiff  a  commission  of 
two  and  one-half  per  cent,  of  the  value  of  defendant's  prop- 
erty, in  the  event  the  deal  was  closed,  plaintiff 'c  right  to  such 
amount,  on  defendant's  subsequent  refusa,!  to  complete  the  ex- 
change, did  not  depend  on  the  fact  that  the  acceptance  of  the 
offer  by  the  other  party  was  conditional  on  the  property  agree- 
ing with  a  description  contained  in  the  offer,  but  solely  on  the 
readiness  and  ability  of  the  other  party  to  complete  the  ex- 
change.   Hege  v.  Hessell  (Wash.  Sup.  '10),  107  P.  375. 

Sec.  465.     Finding  a  purchaser. 

In  the  absence  of  a  special  contract  a  broker  was  not  entitled 
to  a  commission  on  merely  bringing  a  purchaser  who  was  ready, 
willing  and  able  to  pay  the  price  demanded,  where  no  sale  was 
made  because  of  a  disagreement  as  to  when  the  transfer  should 
take  place.  Haase  v.  Schneider,  98  N.  Y.  S.  587,  112  App. 
Div.  336.    See  also  Sec.  541. 

In  an  action  for  services  in  selling  an  estate  for  defendant, 
where  he  did  not  know  till  after  the  sale  that  plaintiff  had 
done  anything  to  aid  it,  circumstances  held  to  warrant  a  deci- 
sion that  there  was  evidence  for  the  jury  of  a  continuing  offer, 
of  an  acceptance,  and  of  performance  by  the  plaintiff  of  the 
contract  to  obtain  a  purchaser.  Barnstein  v.  Laus,  104  Mass. 
214;  Storer  v.  Markley,  164  Ind.  535,  73  N.  E.  1081. 

A  broker  is  entitled  to  his  commission  when  he  has  found 


314  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

a  purchaser  or  a  lender,  as  the  case  may  be,  ready,  able  and 
willing  to  purchase  the  property  or  to  lend  the  money,  in  ac- 
cordance with  the  terms  proposed  by  the  principal.  Eggland 
V.  South  (S.  D.  Sup.  '08),  118  N.  W.  719;  Beckley  v.  Newton, 
140  111.  App.  301;  Mnnsonx.  Carhtrom.  (Iowa  Sup.  '09),  119  N. 
W.  606 ;  Mutchvick  v.  Davis,  114  N.  Y.  S.  997 ;  Little  v.  Her- 
zinger,  34  Utah,  337,  97  P.  639 ;  Caruthers  v.  Reeser,  134  111. 
App.  370;  Masterson  v.  Knight,  135  111.  App.  548;  Glover  v. 
Duffy,  112  N.  Y.  S.  1099;  Hntto  v.  Strigh,  157  Ala.  566,  47 
So.  1031;  Peach  River  Lumber  Co.  v.  Montgomery,  (Tex.  Civ. 
App.  '08),  115  S.  W.  87;  Sotsky  v.  Ginsberg,  114  N.  Y.  S.  114; 
Smith  V.  Sharp  (Ala.  Sup.  '09),  50  S.  381.  And  in  case  of  a 
sale,  when  the  broker  has  procured  an  enforceable  contract  of 
sale  upon  the  principal's  terms.  Moss  &  Raley  v.  Wren  (Tex. 
Sup.  '08),  113  S.  W.  739. 

Sec.  466.     Gratuities. 

"Without  an  express  contract  providing  therefor,  a  broker  is 
not  entitled  to  a  commission  for  rendering  a  service  for  which, 
by  the  local  custom,  no  charge  is  made.  Conrey  v.  Hoover, 
10  La.  Ann.  437. 

It  was  proper  to  instruct  the  jury  that  defendants  were  lia- 
ble for  the  value  of  plaintiff's  services,  if  they  were  of  such 
a  character  and  rendered  under  such  circumstances  as  would 
indicate  to  a  reasonably  intelligent  business  man,  that  they 
were  not  performed  gratuitously,  and  that  compensation  was 
expected,  the  instruction  not  assuming  that  plaintiff  had  ren- 
dered all  the  services  for  which  he  asked  compensation.  Miller 
v.  Early,  22  Ky.  L.  R.  825,  58  S.  W.  789.  Whether  a  broker's 
services  were  rendered  with  expectation  of  reward  is  a  ques- 
tion for  the  jury.  Armstrong  v.  Ft.  Edward,  159  N.  Y.  315, 
53  N.  E.  1116 ;  Darling  v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578. 
Where  an  agent  informed  his  principal  that  he  should  charge 
no  commissions  for  his  services,  he  was  held  to  be  precluded 
from  charging  commissions  during  the  life  of  the  principal, 
though  the  principal  had  recognized  the  agent's  right  to  com- 
missions. Higginson  v.  Fabre,  3  Desau.  (S.  C.)  89.  Volun- 
tary services  by  a  broker  are  mere  gratuities.  See  Mechem  on 
Ag.  Sec.  600. 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  315 

Sec.  467.     Goods  exchanged  for  land. 

Defendant  agreed  to  pay  plaintiff  a  commission  for  finding 
a  purchaser  with  whom  he  could  exchange  his  stock  of  goods 
for  land,  and  the  plaintiff  secured  a  contract  with  P.  to  ex- 
change a  certain  tract  of  land  for  defendant's  stock  of  goods, 
but,  by  a  mistake  of  P.,  the  land  described  in  the  contract  was 
not  Qwned  by  him ;  it  did  not  appear  that  defendant  was  aware 
of  the  mistake.  Held,  that  plaintiff  was  not  entitled  to  a  com- 
mission.    Snyder  v.  Fidler,  135  Iowa,  304,  112  N.  W.  546. 

Sec.  468.    Broker  entitled  to  commission  in  stock  of  insurance 
company 

A  broker  was  employed  to  procure  a  purchaser  of  a  farm 
for  an  agreed  commission;  he  found  a  purchaser  who  pur- 
chased the  farm  and  paid  for  it  in  the  stock  of  an. insurance 
company;  the  owner  agreed  to  transfer  to  the  broker  shares 
of  such  stock,  but  failed  to  do  so.  Held,  that  the  broker  was 
entitled  to  recover  the  agreed  commission.  Rider  v.  Pell,  51 
N.  Y.  669.     See  also  Sec.  377. 

Sec.  469.     Broker  entitled  to  commissions  where  sale  was  en- 
joined. 

An  agent  who,  under  a  contract,  produced  a  person  able 
and  willing  to  purchase  real  estate  is  entitled  to  his  commis- 
sions, although  the  sale  is  afterwards  enjoined.  Gibson  v. 
Gray,  17  Tex.  Civ.  App.  646,  43  S.  W.  922.    See  also  Sec.  473. 

Sec.  470.  When  broker  is  not  entitled  to  full  commission 
until  price  paid. 
Where  the  purchase  money  of  a  mine  was  payable  in  in- 
stallments, and  the  broker's  commissions  were  to  be  deducted 
from  each  installment  as  paid,  it  is  error  to  render  judgment 
for  the  full  amount  of  commissions  before  all  the  installments 
have  been  paid.  Gorham  v.  Heiman,  90  Cal.  346,  27  P.  289; 
Coate  v.  Locust  Ft.  Co.,  102  Md.  291,  162  A.  625.  See  also  Sees. 
297,  570. 

Sec.  471.    Broker  not  informing  principal  of  customer  defeats 
commissions. 
A  real  estate  agent  who  fails  to  induce  a  customer  to  pay, 
the  price  of  land  demanded  by  the  owner,  but  predicts  that 


316  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

lie  will  ultimately  pay  the  price,  is  not  entitled  to  commissions 
where  the  owner  afterwards  sells  the  lands  to  others  for  such 
price,  without  knowing  that  it  was  actually  purchased  for  the 
customer,  the  court  holding  that  the  broker  was  not  the  pro- 
curing cause  of  the  sale.  Goldstein  v.  Walters,  7  N.  Y.  S.  756, 
8  N.  Y.  S.  957,  15  Daly,  397.    See  also  Sees.  235,  312,  431. 

Sec.  472.  Knowledge  by  broker  that  principal  owns  but  part 
of  the  property  offered,  does  not  defeat  his  commissions. 
A  broker's  right  to  commissions  for  procuring  a  purchaser 
for  land  under  an  agreement  therefor,  is  not  affected  by  the 
fact  that  he  knew  the  principal  had  title  to  only  five-sixths  of 
the  land.    Martin  v.  Ede,  103  Cal.  157,  37  P.  199. 

Sec.  473.  Litigation  instituted  by  third  persons  does  not  de- 
feat the  broker's  right  to  commissions. 
A  broker  is  entitled  to  commissions  where  a  purchaser  was 
obtained  through  his  agency,  the  agreement  for  sale  and  pur- 
chase being  complete,  and  only  prevented  from  consummation 
by  litigation  instituted  by  third  persons.  Moore's  Est.,  9  Pa. 
Dist.  R.  675.     See  also  Sec.  469. 

Sec.  474.    Methods  of  earning  .commissions  by  broker. 

There  are  at  least  three  different  methods  of  earning  com- 
missions under  an  agency  for  the  sale  of  real  estate  (1)  by 
effecting  a  binding  contract  of  sale,  under  authority  given  to 
the  agent  to  make  a  contract  for  the  principal;  (2)  by  produc- 
ing a  purchaser  to  whom  a  sale  is  in  fact  made,  and  (3)  by 
producing  a  purchaser  ready,  willing  and  able  to  buy  on  the 
terms  specified  in  the  agency  agreement.  McDermott  v.  Ma- 
honey,  139  Iowa,  292,  115  N.  W.  32 

Sec.  474a.    A  broker  employed  to  sell  real  estate  is  not  re- 
quired to  prepare  a  contract  of  purchase. 

A  broker  employed  to  sell  real  estate  is  not  required  to 
prepare  a  contract  of  purchase.  Brackenridge  v.  Claridge,  42 
S.  W.  1005,  91  Tex.  527. 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  317 

Sec.  475.     Broker  who  merely  brings  the  parties  together  is 
a  middleman,  and  may  recover  from  each. 

If  the  broker  merely  brings  together  two  parties  who  desire 
to  exchange  or  sell  their  lands,  and  his  employment  then  ends, 
and  the  parties  themselves  settle  the  terms  of  the  transaction, 
he  is  a  mere  middleman,  and  may  recover  from  each  party,  if 
each  has  agreed  to  pay  him.  Clark  v.  Allen.  125  CnJ.  27ft., /?7 — 
P.  985;  Green  v.  Robertson,  64  Cal.  75;  Manders  v.  Croft,  3 
Colo.  App.  236,  32  P.  836 ;  Cox  v.  Haun,  127  Ind.  325,  26  N.  E. 
822;  3{uller  v.  Kutzlch,  7  Bush.  (Ky.)  253;  Bolph  v.  Wain- 
scott,  14  Ky.  L.  R.  (abst.)  304:  Montrose  v.  Eddy,  94  ]\Iich. 
100,  53  N.  W.  916;  Ranney  v.  Donavan.  78  ]\rich.  318,  44  N. 
W.  276;  Child  v.  Ptomey.  17  Mont.  502,  43  P.  714;  Norton  v. 
Genesse  Nat.  Sav.,  etc.,  Ass'n,  68  N.  Y.  S.  32,  57  A.  D.  520; 
Knaus  v.  Gottfried  Krueger  Brewing  Co.,  142  N.  Y.  70,  36  N. 
E.  867;  Siegel  v.  Gonhl,  7  Lans.  (N.  Y.)  177;  Pollatsckiel-  v. 
Goodwin,  40  N.  Y.  S.  682,  17  Misc.  587,  75  St.  86 ;  Bonwell  v. 
Auld,  29  N.  Y.  S.  15,  9  ]\Iisc.  65 ;  Jarvis  v.  Schaefer,  105  N.  Y. 
289,  11  N.  E.  634;  Bolheimrr  v.  Richardt,  55  How.  Pr.  (N.  Y.) 
414;  Eaviland  v.  Price,  26  N.  Y.  S.  757,  6  Misc.  372;  Collins 
V.  Fowler,  8  Mo.  App.  588;  Orton  v.  Schofield,  61  Wis.  382; 
McClure  v.  Luke,  154  Fed.  647;  Bass  v.  Talhert  (Tex.  Civ. 
App.  '08),  112  S.  W.  1077;  Ross  v.  Carr  (N.  M.  Sup.  '09), 
103  P.  307;  Grasinger  v.  lAicas  (S.  D.  Sup.  '09),  123  N.  W. 
77;  Sternherger  v.  Young  (N.  J.  Eq.  '10),  75  A.  807. 

Quaere?  "Whether  one  who  acts  as  middleman,  merely  bring- 
ing the  vendor  and  vendee  together  to  make  their  own  contract, 
without  aid,  advice  to  or  interference  on  behalf  of,  either,  may 
recover  compensation  from  both,  without  knowledge  by  one 
of  such  arrangement  with  the  other.  Harten  v.  Loeffler,  31 
App.  D.  C.  362.     Compare  Sec.  578. 

Sec.  476.    Sale  of  mine  by  broker,  not  within  description,  not 
entitled  to  commissions. 

An  agreement  providing  that  defendant  should  pay  the 
plaintiff  a  certain  commission  on  any  sale  made  through  him, 
or  to  pay  the  same  percentage  "on  any  sale  made  through  a 
certain  bond  or  agreement  made  with  Robert  Hennegan  of  this 
city,  on  certain  mining  property  in  said  agreement  in  Ures 


318  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

District,  State  of  Sonora,  Mexico,"  does  not  provide  for  com- 
missions on  a  sale  made  through  plaintiff  of  mines  situated 
in  the  District  of  Arispe.  Wulff  v.  Lindsay,  8  Ariz.  168,  71  P. 
963.     See  also  Sees.  59,  181. 

Sec.  477.    Modification  of  contract,  not  assented  to  by  broker, 
does  not  affect  commissions. 

Defendant's  agreement  to  pay  plaintiff  a  certain'  amount 
for  furnishing  a  purchaser  for  land  is  not  revoked  by  de- 
fendant's statement  to  plaintiff,  after  furnishing  the  name  of 
one  who  afterwards  became  a  purchaser,  that  he  would  pay 
no  commission  to  any  agent  on  a  sale  of  the  land  unless  a 
certain  price  was  obtained,  the  plaintiff  not  having  assented 
to  the  modification.  Biird  v.  Webster,  128  Wis.  118,  107  N. 
W.  23;  Odell  V.  Dozier,  104  Ga.  203,  30  S.  E.  813;  Levistone 
v.  Landreux,  6  La.  Ann.  26;  Glade  v.  Eastern  III.  Min.  Co., 
129  Mo.  App.  443,  107  S.  W.  1002 ;  Cody  v.  Dempsey,  83  N.  Y. 
S.  899,  86  App.  Div.  335;  Mottos  v.  Engle,  15  S.  D.  330,  89 
N.  W.  651 ;  Mark  v.  Elliott,  90  N.  Y.  S.  331 ;  Blair  v.  Slosson, 
27  Tex.  Civ.  App.  403,  66  S.  W.  112;  Bishop  v.  Averill,  17 
Wash.  209,  49  P.  237,  50  P.  1024. 

Sec.  478.    Modification  of  contract  by  owner  in  broker's  pres- 
ence, did  not  affect  commissions. 

The  fact  that  the  terms  of  a  sale  of  realty,  as  stated  to  the 
broker,  were  modified  by  the  owners  as  to  the  commissions,  in 
the  broker's  presence,  and  the  purchaser's  proposal  as  to  the 
method  of  payment,  would  not  relieve  the  owner  from  liability 
for  commissions.  Huntmer  v.  Arent,  16  S.  D.  465,  93  N.  W. 
653. 

Sec.  479.    Modification    of    contract    by    broker    performing 
other  services,  modifies  right  to  commissions. 

Where  a  broker's  duty  is  not  merely  to  procure  a  purchaser, 
but  to  perform  some  other  agreed  services,  within  a  reasonable 
time  or  within  a  limited  time,  the  general  rule  as  to  what  is 
required  of  him  to  be  entitled  to  his  commissions  is  modified 
accordinsrly.     Phinzrf  v.  Bush,  129  Ga.  479.  59  S.  E.  259. 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  319 

Sec.  480.  Broker  agreeing  to  accept  corporate  stock  for  com- 
missions, not  entitled  to  recover  in  money. 
Where,  by  the  contract  in  regard  to  a  sale  of  property,  a 
broker  arranges  with  all  the  parties  that  the  compensation  shall 
be  paid  in  certain  stock  of  a  company  to  be  formed  by  him 
and  others  to  buy  the  land,  he  can  not  hold  the  vendors  re- 
sponsible for  the  amount  of  such  compensation.  Bowles  v. 
Allen  (Va.  Sup.),  21  S.  E.  665.     Compare  Sec.  468. 

Sec.  481.  Net  price  to  owner,  does  not  entitle  broker  to 
excess. 

A  real  estate  broker  to  sell  land  for  a  certain  net  price  is 
not  entitled,  in  the  absence  of  a  contract  therefor,  to  the  ex- 
cess over  such  price  that  he  may  obtain  for  the  land.  Snoio 
V.  McFarlane,  51  111.  App.  448;  Turnley  v.  Michael  (Tex.  Civ. 
App.  '91),  15  S.  W.  912.  Compare  Deming  Inv.  Co.  v.  Meyer 
(Okla.  '07),  91  P.  846. 

And  where  a  broker  was  authorized  to  sell  land  for  $3  per 
acre  net  to  the  owner,  and  was  offered  $3.50  by  a  purchaser, 
who  subsequently  bought  the  land  of  the  owner,  without  the 
broker's  intermediation,  the  broker  could  not  recover  fifty  cents 
per  acre  from  the  purchaser,  but  his  action  was  against  the 
owner,  as  it  was  his  duty  to  sell  for  the  best  price  obtainable, 
and  account  to  the  owner  therefor,  less  a  reasonable  compen- 
sation.   Boysen  v.  Rohertso7i,  70  Ark.  56,  68  S.  W.  243. 

Sec.  482. .  Net  price  to  owner,  broker  selling  thereat  not  en- 
titled to  any  commission. 
A  broker  was  orally  employed  to  procure  a  purchaser  of  a 
farm  within  five  days,  at  a  price  which  should  net  the  owner 
$11,000  and  the  broker  $875;  thereafter  the  broker  stated  in 
writing  that  any  arrangement  made  by  his  agent  and  t!^  own- 
er would  be  satisfactory;  that  he  would  have  persons  look  at 
the  farm  before  the  expiration  of  the  five  days,  and  that  any 
arrangement  should  be  made  in  writing;  the  owner  wrote  that 
he  would  give  the  broker  "a  price  of  $11,000  on"  the  farm 
for  ten  days,  "reserving  the  privilege  to  sell  to  others;"  the 
broker  sent  his  agent  to  the  owner,  with  a  writing,  for  the 
purpose  of  making  sure  of  a  commission  if  the  sale  was  made. 


320  AiJERICAN   LAW    REAL   ESTATE   AGENCY. 

Held,  that  tlie  written  contract  agreed  to  by  the  broker,  and 
the  owner's  written  statement,  which  superseded  the  oral  con- 
tract, conferred  on  the  broker  the  right  to  sell  the  farm  at  a 
sum  which  would  give  the  owner  $11,000,  and  on  the  owner 
the  right  to  sell  it  to  any  purchaser  not  procured  by  the  bro- 
ker, and  authorized  a  sale  to  a  purchaser  procured  by  the  bro- 
ker for  as  low  a  price  as  $11,000,  if  the  broker's  agent  in  charge 
of  the  transaction  was  willing  to  do  it,  unless  the  owner  knew 
that  the  agent  was  acting  contrary  to  his  instructions.  Haven 
V.  Tariar,  124  ]Mo.  App.  691,  102  S.  W.  21 ;  BahcocTc  v.  Merritt, 
1  Colo.  App.  84,  27  P.  882 ;  Rees  v.  Spruance,  45  111.  308 :  Bur- 
nett V.  Betts,  236  111.  499,  86  N.  E.  258;  Sanger  v.  Wilson,  52 
111.  App.  117;  Antisdell  v.  Canfield.  119  :Mich.  229,  77  N.  W. 
944;  Williams  v.  McGraw.  52  IMich.  480,  18  N.  W.  227;  Holcomh 
V.  Staford,  102  Minn.  233,  113  N.  W.  449;  Beatty  v.  Russell, 
41  Neb.  321,  59  N.  W.  919;  Holhrook  v.  Inv.  Co.,  30  Ore.  259, 
47  P.  920;  Ames  v.  Lamont,  107  Wis.  531,  83  N.  W.  780;  Wol- 
verton  v.  Tuttle,  51  Ore.  501,  94  P.  961.    See  also  Sec.  560. 

In  some  jurisdictions,  in  such  case  the  broker  is,  nevertheless, 
entitled  to  recover  of  the  owner  a  reasonable  compensation  for 
his  services.  Alexander  v.  Breedo-n,  14  B.  ]\Ion.  (Ky.)  125; 
Aikin  v.  Allan,  14  Manitoba,  549;  Ford  v.  Brown,  120  Cal.  551, 
52  P.  817.  But  can  not  recover  where  the  sale  is  not  completed. 
Seattle  Land  Co.  v.  Day,  2  Wash.  451,  27  P.  74. 

An  agreement  for  the  sale  of  real  estate  for  a  net  amount 
to  the  owners,  the  person  making  the  sale  to  have  as  compen- 
sation what  he  could  get  above  that  amount,  entitled  him  to 
no  compensation  for  making  a  sale  until  the  owners  received  the 
net  amount  stipulated,  unices  a  fiibi^^p  to  do  so  was  due  to 
their  own  fault.    Burnett  v.  Botts,  236  111.  499,  86  N.  E.  258. 


CHAPTER  VII. 


SECTION. 

483.  Net  price  to  owner  and  note 

for  excess  to  broker — On 
vendor's  refusal  broker  en- 
titled to  commission. 

484.  Net  price,  broker  entitled  to 

excess  from  first  pay- 
ment made. 

485.  Where   owner   changed    con- 

tract from  gross  to  net 
price  liable  to  broker  for 
commissions. 

486.  Broker's    commissions    com- 

puted on  actual  sum  re- 
ceived. 

487.  Failing  to  disclose  that  nom- 

inal is  not  the  real  pur- 
chaser does  not  defeat 
broker's  commissions. 
487a.  Liability  to  broker  for  com- 
mission depends  upon  real 
parties  to  bargain. 

488.  Broker   entitled   to   commis- 

sions where  non-perform- 
ance of  contract  not  occa- 
sioned by  his  fault. 

489.  Where  neither  principal  nor 

broker  effecting  sale  had 
notice  of  other  broker's 
negotiations  he  is  not  en- 
titled to  commissions. 

490.  Principal   selling   before  ex- 

piration of  time  given 
broker  without  notice, 
broker  entitled  to  commis- 
sions. 

491.  Reporting    offer    of    $10,000 

instead  of  $15,000  did  not 
deprive  broker  of  commis- 
sions. 


SECTION. 

492.  Oral  contract    to    sell    land 

followed  Hy  written  con- 
tract entitled  broker  to 
commissions. 

493.  Broker  entitled   to   commis- 

missions  for  sale  of  four 
houses,  not  entitled  to 
proportionate  amount  for 
one. 

494.  Broker   entitled    to   commis- 

sions for  sale  of  lots,  not 
entitled,  to  same  rate  for 
large  body  of  land. 

495.  Broker     promised     commis- 

sions for  selling  part,  en- 
titled to  the  same  rate 
for  selling  all. 

496.  Broker  who  failed  to  sell  all 

entitled  to  commissions  on 
sale  of  part  by  owner  to 
customer. 

497.  Share     of     profits     on     sale 

through  sub-agent  not  de- 
feated by  unfair  dealing 
of  latter. 

498.  Commissions  payable  on  sale, 

and  not  on  collection  of 
deferred  payments. 

499.  Commissions   are   due   when 

contract  is  made  with 
purchaser  produced  by 
broker^ 

499a.  Broker's  commissions  are 
earned  when  contract  of 
exchange  is  executed. 

499b.  Commissions  not  due  until 
iEictual  transfer  made:  " 


3gl 


322  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

Sec.  483.    Net  price  to  owner  and  note  for  excess  to  broker, 
on  vendor's  refusal  broker  entitled  to  commissions. 

Defendant  emploj^ed  plaintiff  to  effect  a  sale  of  his  land 
so.  as  to  yield  $2,500.  plaintiff'  to  receive  as  compensation  all- 
she  could  obtain  above  that  sum;  she  procured  a  purchaser  for 
$2,880,  $2,500  to  be  paid  to  defendant  in  cash,  and  plaintiff  to  re- 
ceive the  purchaser 's  notes,  secured  by  mortgage,  for  the  balance ; 
defendant  refused  to  convey.  Held,  that  he  was  liable  to  plaintiff 
for  her  loss.  Can  field  v.  Orange,  13  N.  D.  622,  102  N.  W.  313; 
Foster  v.  Taylor,  44  Wash.  313,  87  P.  358;  Van  Gorder  v. 
Sherman,  81  Iowa,  403,  46  N.  W.  1087;  Luhn  v.  Fordtran  (Tex. 
C.  A.  '08),  115  S.  W.  667. 

Sec.  484.  Net  price,  broker  entitled  to  excess  from  first  pay- 
ment made. 
Where  a  land-owner  employed  a  broker  to  sell  land  on  an 
understanding  that  he  should  have  as  his  commissions  any- 
thing that  could  be  obtained  over  a  specified  price,  the  broker 
was  entitled  to  his  commissions  out  of  the  first  payment  made 
by  the  purchaser.  Young  v.  Ruhwedel,  119  Mo.  App.  231,  96 
S.  W.  228. 

Sec.  485.    Where  the  owner  changed  the  contract  from  gross 
to  net  price  liable  to  broker  for  commissions. 

Plaintiff  procured  a  contract  authorizing  him  to  sell  defend- 
ant's timber  land  on  a  five  per  cent,  commission,  and,  having 
found  a  purchaser,  presented  to  defendant  for  his  signature 
an  option  giving  the  grantee  the  right  to  purchase  in  sixty 
days ;  defendant,  before  signing  the  option,  but  without  any 
conversation  Avith,  the  plaintiff,  changed  the  same  so  as  to  read 
that  the  price  was  "net  cash"  to  him.  Held,  that  such  altera- 
tion meant  that  the  price  was  net  cash  to  defendant,  as  between 
him  and  the  purchaser,  and  had  no  reference  to  defendant's 
contract  with  plaintiff  for  commis.sions.  Love  v.  Scatcherd^ 
146  Fed.  1,  77  C.  C.  A.  1. 

Sec.  486.     Broker's  commissions  computed  on  actual  amount 
received. 

An  agent  who  agreed  to  sell  a  farm  for  two  per  cent,  on 
a  certain  amount,  and  three  per  cent,  on  all  received  in  excess 


COMMISSION   AND    (COMPENSATION    OF   AGENTS.  323 

of  that  amount,  is  not  entitled  to  commissions  on  the  value  of 
part  of  a  crop  which  he  knew  belonged  to  another,  and  which 
was  deducted  from  the  gross  amount  received.  Barrett  v.  John- 
sm,  64  Pa.  St.  223;  Oliver  v.  Little  (Nev.  Sup.  '09),  103  P. 
240;  Weeks  v.  Smith  (N.  J.  Sup.  MO),  75  A.  773;  Blakeley 
v.  Pursell,  90  N.  Y.  S.  337. 

Sec.  487.  Failing  to  disclose  that  nominal  is  not  the  real  pur. 
chaser  does  not  defeat  the  broker's  commissions. 

A  mere  failure  to  disclose  to  the  principal  that  the  nominal 
purchaser  is  not  the  real  purchaser  does  not  amount  to  a  fraud 
to  deprive  the  broker  of  commissions.  Veasey  v.  Carson,  177 
Mass.  117,  58  N.  E.  177,  53  L.  R.  A.  241.     See  also  Sec.  525. 

Sec.  487a.  Liability  to  broker  for  conmiissions  depends  upon 
the  real  parties  to  the  bargain. 

Liability  to  a  broker  for  commissions  is  not  dependent  upon 
what  parties  formally  entered  into  the  written  contract  of  sale 
oifered  to,  or  negotiated  in  by,  the  principal,  but  wholly  upon 
who  constituted  the  "real"  parties  to  the  bargain.  McLaughlin 
V.  Campbell  (N.  J.  Err.  &  App.  '09),  74  A.  530.  See  also  Sec. 
317. 

Sec.  488.  Broker  entitled  to  commissions  where  non-per- 
formance of  contract  not  occasioned  by  his  fault. 

A  broker  is  entitled  to  a  commission  where  the  customer 
found  by  him  and  the  principal  enter  into  an  enforceable  con- 
tract of  purchase  or  sale,  although  one  or  both  of  the  parties 
refuse  to  comply  with  the  contract,  and  the  failure  is  not  at- 
tributable, to  the  fault  of  the  broker.  Jenkins  v.  H oiling sworth, 
83  111.  App.  139;  Flynn  v.  Jordal,  124  Iowa,  457,  100  N.  W. 
326;  Bach  v.  Emrioh,  35  N.  Y.  Super.  Ct.  548;  Folinshee  v. 
Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293 ;  Brown  v.  Helmuth.  21 
N.  Y.  S.  615,  2  Misc.  566;  Donohuc  v.  Flanagan,  9  N.  Y.  S.  273, 
28  N.  Y.  S.  757;  Larson  v.  Burroughs,  116  N.  Y.  S.  358. 

Sec.  489.  Where  neither  principal  nor  broker  effecting  sale 
had  notice  of  other  broker's  negotiations  he  is  not  entitled 
to  commissions. 

"Where  neither  the  principal  nor  the  broker  effecting  the 
sale  had  notice  of  former  negotiations  with  the  other  broker  the 


324  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

latter  is  not  entitled  to  a  commission,  especially  where  she  failed 
to  bring  the  buyer  and  seller  to  an  agreement.  Haines  v.  Bar- 
ney^ 67  N.  Y.  S.  164,  33  Misc.  748;  Martin  v.  Billings,  2  N.  Y. 
City  Ct.  86;  Kifcr  v.  Yoder,  198  Pa.  St.  308,  47  A.  974;  Glass- 
cock V.  Van  fleet,  100  Tenn.  603,  46  S.  W.  449.  See  also  Sec.  360. 
There  are  cases  holding  that,  irrespective  of  notice,  the  com- 
mission belongs  to  the  broker  who  is  the  procuring  cause  of  the 
sale.    Scott  v.  Llotjd,  17  Golo.  401,  35  P.  733,  and  Sec.  446. 

Sec.  490.     Principal  selling  before  expiration  of  time  given 
broker,  without  notice,  broker  entitled  to  commissions. 

A  broker  is  entitled  to  commissions  where  the  principal 
sells  before  the  expiration  of  the  agencj^  without  giving  the 
broker  notice  of  the  sale.  Woodafl  v.  Foster,  91  Tenn.  195,  18 
S.  W.  241 ;  Cadigm  v.  Crahtrce,  186  Mass.  7,  70  N.  E.  1033,  66 
L.  R.  A.  982 ;  Keishus-Remer  Land  Co.  v.  Benner,  91  Minn.  401, 
98  N.  W.  186.  (This  is  contrary  to  the  doctrine  that  a  sale 
puts  an  end  to  the  agency,  and  if  his  contract  has  been  violated 
the  broker  has  a  right  of  action  for  the  breach.) 

Sec.  491.    Reporting  offer  of  $16,000  instead  of  $15,000  did 
not  deprive  broker  of  commission. 

The  fact  that  a  broker  reports  to  his  principal  that  an  offer 
of  $16,000  for  the  land  has  been  made  instead  of  $15,000,  does 
not  affect  his  right  to  a  commission  where,  as  a  result-  of  his 
negotiations,  a  sale  for  the  smaller  sum  was  made.  Peckham 
V.  Ashhurst,  18  E.  I.  376,  28  A.  357.    See  also  Sees.  215,  502. 

Sec.  492.  Oral  contract  to  sell  land,  followed  by  written  con- 
tract, entitles  the  broker  to  commissions. 
Rev.  Stat.  1899,  Sec.  3418,  provides  that  no  contract  for  the 
sale  of  lands  made  by  an  agent  shall  be  binding  on  the  prin- 
cipal unless  the  agent  is  authorized  in  WTiting  to  make  the  con- 
tract. Held,  that  where  a  land-owner  orally  employed  a  broker 
to  find  a  purchaser,  and  the  broker  made  a  written  contract 
with  the  purchaser,  the  production  thereof  to  the  land-owner 
was  equivalent  to  the  production  of  a  purchaser;  since,  if  the 
owner  had  chosen  to  ratify  the  contract,  it  would  have  been 
binding.    Young  v.  Buhivedel,  119  Mo.  App.  231,  96  S.  W.  228. 


COMMISSION   AND   COMPENSATION   OF   AGENTS.  325 

Sec.  493.     Broker   entitled  to   commissions   for  sale   of  four 
houses,  not  entitled  to  proportionate  amount  for  one. 

Where  a  broker  is  entitled  to  a  coimnission  of  one-third  of 
the  excess  above  a  certain  amount  realized  on  a  sale  of  four' 
houses,  he  is  not  entitled  to  a  proportionate  amount  on  the  sale 
of  only  one  house.    Meyer  v.  Haaren,  5  N.»Y.  S.  436,  57  N.  Y. 
Super.  Ct.  574.    Compare  Sec.  495. 

Sec.  494.     Broker  entitled  to  commissions  for  a  sale  of  lots, 
not  entitled  to  same  rate  for  a  large  body  of  the  land. 

A  contract  to  pay  a  certain  commission  on  a  sale  of  lots  at 
a  fixed  price  out  of  a  body  of  land,  does  not  entitle  the  ag-ent 
to  a  commission  at  the  same  rate  for  a  large  body  of  the  land. 
Louisville  Bdg.  Ass'n  v.  Hegan,  20  Ky.  Ij.  R.  1629,  49  S.  W.  796. 

Sec.  495.     Broker  promised  commissions  for  selling  part,  en- 
titled to  the  same  rate  for  selling  all. 

Where  defendant  agreed  to  pay  plaintiff  for  his  senace.i  one- 
half  of  the  proceeds  of  the  sale  of  two  mining  claims,  but  in 
the  sale  of  these,  with  others,  the  interests  are  not  separately 
valued,  the  plaintiff  is  entitled  to  recover  one-half  of  the  entire 
proceeds  of  the  sale,  if  it  is  impossible  to  determine  what  pro- 
portion should  be  credited  to  the  claims  in  which  he  is  inter- 
ested. Huff  V.  Hardwick,  19  Colo.  App.  416,  75  P.  593.  Com- 
pare Sec.  493. 

Sec.  496.     Broker  who  failed  to  sell  all,  entitled  to  commis- 
sions on  sale  of  part  by  owner  to  his  customer. 

Where  a  brokrr  was  employed  to  sell  a  whole  tract  of  land, 
or  a  part  thereof,  and  after  negotiating  the  broker  failed  to 
make  a  sale  and  an  attempt  was  made  to  discharge  him;  but 
lie  continued  his  negotiations,  and  sul)se(|uently  the  owner  sold 
a  [)orti()n  of  the  tract  to  a  person  with  whom  the  broker  had 
prior  negotiations,  the  owner  was  held  liable  to  pay  the  broker 
a  proportionate  eonimission.  Dimnoiid  v.  Whrrlrr.  80  X.  Y.  S. 
416.  SO  App.  T)iv.  5S.  See  to  contrarv  Cfirpr nlf'r  v.  Atlas  Imp. 
Co.,  108  X.  Y.  S.  547,  123  App.  Div.  70(5.    See  also  Sees.  455,  967. 


326  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  497.  Share  of  profits  on  sale  through  sub-agent  not  de- 
feated by  unfair  dealing  of  latter. 
Where  plaintiff,  who  was  the  sales  agent  for  certain  prop- 
erty, authorized  defendant  to  sell  the  same,  and  agreed  to  di- 
vide the  profits  with  him,  any  unfair  dealing  on  defendant's 
part  with  plaintiff'^  principal,  not  a/Yecting  the  sale,  did  not 
affect  the  plaintiff's  right,  as  against  defendant,  to  share  in 
the  profits  of  the  sale,  in  the  absence  of  participancy  by  plain- 
tiff in  defendant's  wrong.  Mndler  v.  Pozorski,  124  Wis.  477, 
102  N.  W.  892.    See  also  Sec.  520.    Compare  See.  522 

Sec.  498.     Commissions  payable  on  sale,  and  not  on  collection 
of  deferred  payments. 

Where  a  vendor  instructed  his  agent  that  he  would  take 
$15  per  acre  for  his  part  of  the  land,  and  accepted  the  terms 
of  a  sale  for  part  cash  and  part  in  deferred  payments,  with  se- 
curity, the  agent's  compensation  is  due  when  the  sale  is  com- 
pleted, and  not  on  collection  of  the  deferred  payments.  Han- 
cock V.  Dodge,  85  Miss.  728,  37  S.  711;  Wallctce  v.  Shepard,  42 
Texas  Civ.  App.  594,  94  S.  W.  151. 

Sec.  499.     Commissions  are  due  when  contract  is  made  with 
purchaser  produced  by  broker. 

Real  estate  commissions  become  due  and  payable  when  the 
broker  has  produced  a  purchaser  with  whom  the  owner  entered 
into  a  valid  and  enforceable  contract.  Dennis  v.  Walters,  123 
111.  App.  93. 

Where  a  broker  has  procured  a  purchaser  acceptable  to  the 
seller,  and  an  enforceable  written  contract  is  made  between 
them,  the  broker's  right  to  commissions  is  not  dependent  on 
the  purchaser's  ability  to  pay  for  the  land.  Hamburger  v. 
Thomas' (Tex.  Civ.  App.  '09),  118  S.  W.  770.    Compare  Sec.  464. 

Sec.  499a.     Broker's  commissions  are  earned  when  contract 
of  exchange  is  executed. 

Where  a  broker  is  employed  to  effect  an  exchange  of  prop- 
erty, he  earns  bis  commission  when  the  contract  of  exchange  is 
executed.    Rohkohl  v.  Sussmann,  113  N.  Y.  S.  586,  61  Misc.  246. 


COMMISSION    AND    COMPENSATION   OF    AGENTS.  327 

Sec.  499b.     Commission  not  due  until  actual  transfer  made. 

A  note  evidencing  the  commission  to  be  paid  to  'plaintiff  for 
procuring  a  purchaser  for  defendant's  land  was  directed  to 
plaintiff  and  signed  and  delivered  by  the  defendant.  It  pro- 
vided that  if  the  deal  pending  between  defendant  and  a  third 
party  for  an  exchange  of  property  was  consummated,  defend- 
ant would  pay  plaintiff  .$1,000  commissions.  Held,  that  no 
commission  was  due  until  the  actual  transfer  of  the  title  of 
the  property  by  an  exchange  of  deeds.  Goodwin  v.  Sieman, 
106  Minn.  368,  118  N.  W.  1008. 


CHAPTER  VIII. 


SECTION. 

500.  Broker   entitled   to   commis- 

sions ou  actual  payment 
by  defaulting  vendee. 
500a.  Broker  limited  to  commis- 
sions on  $1,000,  although 
property  later  sold  for 
|l2,500. 

501.  Broker's   right    to    commis- 

sions not  defeated  because 
to  be  paid  from  purchase 
money. 

502.  Principal  liable  for  commis- 

sions on  sale  to  customer 
at  lower  price,  unless 
fixed  price  required. 

503.  Where    principal    agreed    to 

pay  commissions  upon  re- 
ceipt of  price,  broker  not 
entitled  before. 

504.  Commissions      are      usually 

payable  upon  completion 
of  tlie  transaction. 

505.  Broker    entitled    to   commis- 

sions although  purchaser 
pays  more  than  he  au- 
thorized him  to  ofl'er. 

506.  Wiiere    purchaser    defaulted 

broker  entitled  to  com- 
missions on  actual  pay- 
ments. 

.507.  Cases  wliei-e  ])]aintitT  was 
held  ni>t  to  be  the  ]n-o- 
curiug  cause  of  sales,  and 
not  eiititl<-d  t"  commis- 
sions. 

SOS.      Where     sale     f  r  u  s  t  r  a  t  ed 
througli    failuif  to   ])arti- 
tiou.    l)roker    entitled    to 
comjnissions. 
32S 


SECTION. 

509.  Partial  performance  entitled 

broker  to  recover  neither 
on  contract  nor  on  quan- 
tum meruit.  • 

510.  Agent  in  charge  of  real  es- 

tate securing  responsible 
tenant,  entitled  to  lecover 
on  a  quantum   meruit. 

511.  On  principal   selling,  broker 

could  recover  for  services 
on  a  quantum  meruit. 

512.  Principal    selling     for     less 

than  agreed  price,  broker 
entitled  to  recover  on  a 
quantum  meruit. 

513.  In    the    absence    of    an    ex- 

])ress  contract  broker  "pro- 
curing a  purchaser  may 
recover  on  a  quantum 
meruit. 
513a.  In  absence  of  fixed  rule 
measure  of  broker's  com- 
pensation the  value  of  the 
service  rendered. 

514.  Demand  by  broker  for  .$10,- 

000  to  release  lien  defeat- 
ed liis  right  to  commis- 
sions. 

515.  First    broker    held    to    have 

right    to    commissions    by 
second's  relinquishment. 
515a.  Waiver   of    variance   in   con- 
tract  by   acquiescence. 

516.  If  autliority  to  secure  a  pur- 

cliaser  is  revocable  broker 
finding  after  barred  con> 
missions. 


COMMISSION    AND   COMPENSATION    OF   AGENTS.  329 

SECTION.  SECTION. 

517.  If  the  customer  reserves  the       519.     Broker  and  sub-agent  stand 

right    to    withdraw    from  in  similar  relations  as  to 

transaction  if  title  bad,  if  compensation  as  do  prin- 

exercised     bars     commis-  cipal  and  agent, 

sions.  520.     Sub-agent  entitled   to   share 

518.  Unless    exclusive    rival    bro-  in  commissions  though  he 

ker    entitled    to    commis-  violated  instructions, 

sions  on  sale  by  the  other.       520a.  Broker    liable   to    sub-agent, 

though  pro^rty  on  sale 
found  not  to  belong  to 
vendor. 

Sec.  500.     Broker  entitled  to  commissions  on  actual  payments 
by  defaulting  vendee. 

The  owner  of  land  authorized  a  broker  to  make  a  sale  there- 
of, "commissions  to  be  paid  out  of  the  payments  as  made," 
and  a  letter  in  setting  forth  the  terms  of  sale  provided  that 
on  default  by  the  purchaser  a]]  prior  payments  should  be  for- 
feited, and  neither  party  have  any  claim  on  the  other;  the  bro- 
ker found  a  purchaser  who  gave  a  deed  of  trust  to  s'ecure  the 
payments,  and  subsequently  defaulted;  thereafter,  the  vendor 
released  the  vendee  from  his  obliuations  and  conveyed  to  an- 
other, and  the  broiler  sued  for  commissions  on  the  entire  price. 
TIMd,  that  the  contract  between  the 'parties  did  not  entitle  the 
broker  to  commissions  except  on  those  payments  actually  made 
by  the  vendee.  Murray  v.  Richard,  103  Va.  132,  48  S.  E.  871 ; 
Peters  V.  Anderson,  88  Va.  1051,  14  S.  E.  974.  See  also  Sees. 
297,  506.  ■       ■  - 

Sec.  500a.     Broker  limited  to  commissions  on  $1,000,  although 
property  later  sold  for  $12,500. 

Plaintiff  negotiated  a  lease  of  lands  belonging  to  W.,  under 
a  vei'bal  contract  whereby  he  was  to  receive  a  commission  of 
one-third  the  rent  per  annum.  l.lefore  the  expiration  of  the 
lease  W.  died,  and  Ihe  defendant  was  appointed  administrator 
of  the  estate.  The  lessees  were  .'f;! 7.500  in  default  for  rent, 
and  defendant  foi-eclosed  the  landlord's  lien  on  a  g?"ovving 
crop  on  the  premises  for  the  arrears  in  rent.  ])urehasing  the 
same  for  .4;1.000  at  the  foreclosure  sale.  Thereafter  defend'ant 
sold  the  crop  to  other  parties  for  s^l 2.500.  and  plaintiff,   who 


330  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

had  never  received  any  commissions  from  the  rents,  brought 
an  action  to  recover  therefor,  claiming  one-third  commissions 
on  the  $12,500  paid  defendant,  on  the  theory  that  it  was  a  part 
of  the  balance  due  on  the  rent.  Held,  that  plaintiff  was  entitled 
only  to  a  commission  on  the  $1,000  paid  by  defendants  for  the 
crop,  since  the  foreclosure  was  to  effect  a  payment  of  the  rent, 
and  as  such  the  amount  thereby  received  M^as  credited,  not  the 
subsequent  sale  of  the  property  poirchased.  Schultz  v.  Goldman, 
1  Ariz.  279,  64  P.  425. 

Sec.  501.     Broker's  right  to  commissions  not  defeated  because 
to  be  paid  from  purchase  money. 

A  broker  may  recover  a  commission  of  his  principal,  although 
the  sale  made  is  not  consummated,  if  it  fails  solely  on  account 
of  a  defect  in  the  vendor's  title  of  which  the  broker  was  neither 
notified  n-or  had  personal  knowledge,  although  the  commission 
was  to  be  paid  out  of  the  proceeds  of  sale.  Cheatham  v.  Yar- 
hrough,  90  Tenn.  77,  15  S.  W.  1076.  See  also  Sec.  570.  For 
the  contrary  doctrine,  where  actual  sale  was  not  made  as  pro- 
vided by  contract.  BuU  v.  Price,  7  Bing.  (Eng.)  237,  9  L.  J.  C, 
P.,  0.  S.  78. 

Sec.  502.    Principal  liable  for  commissions  on  sale  to  customer 
at  lower  price,  unless  a  fixed  price  required. 

Where  a  principal  makes  a  sale  to  a  purchaser  found  by  the 
broker,  having  availed  himself  of  the  broker's  services,  he  is 
liable  for  the  commission,  although  the  sale  is  made  at  a  lower 
price  than  that  originally  proposed  by  him  to  the  broker.  Crook 
V.  Forst,  116  Ala.  395,  22  S.  540;  Williams  v.  Bishop,  11  Colo. 
App.  378,  53  P.  239 ;  Schegal  v.  AUerton,  65  Conn.  260,  32  A. 
363;  Bakery.  Murphy,  105  HI.  App.  151;  ^YrigM  v.  McClintock, 
136  Mo.  App.  438 ;  Loehde  v.  Halsey,  88  111.  App.  452 ;  Stievil  v. 
Lally.  89  Ark.  195,  115  S.  W,  1134;  McConaughty  v.  Mehannah, 
28  111.  App.  169;  Plavt  v.  Thompson,  42  Kan.  664,  22  P.  726; 
Ratts  V.  Shepherd,  37  Kan.  20,  14  P.  496;  Hancock  v.  Stacey 
(Tex.  Civ.  App.  '09),  116  S.  W.  177;  Huhachek  v.  Hazzard.  83 
Minn.  437,  86  N.  W.  426;  McCormack  v.  Henderson,  100  Mo. 
App.  647,  75  S.  AV.  171;  Stinde  v.  Bleach,  42  Mo.  App.  578; 
Lawson  v.  Black  Diamond  Coal  Mining  Co.   ("Wash.  Sup.   '09), 


COMMISSION    AND   COMPENSATION   OF    AGENTS.  331 

102  P.  759;  Wetzell  v.  Wagoner,  41  Mo.  App.  509;  Martin  v. 
Silliman,  53  N.  Y.  615;  Martin  v.  Fagan,  88  N.  Y.  S.  472,  95 
App.  Div.  154;  Levy  v.  Coogan,  9  N.  Y.  S.  534,  16  Daly,  137; 
Chilton  V.  Butler,  1  E.  D.  Smith,  150;  Hobhs  v.  Edgar,  51  N. 
Y.  S.  1120,  23  Misc.  618;  Gold  v.  Serrell,  26  N.  Y.  S.  5,  6  Misc. 
124 ;  Steinfeld  v.  Strom,  63  N.  Y.  S.  966,  31  Misc.  167 ;  Keys 
V.  Johnson,  68  Pa.  St.  42;  Byrd  v.  Frost  (Tex.  Civ.  App.  '94), 
29  S.  W.  46;  Pierce  v.  A^io/io^s  (Tex.  Civ.  App.  '08),  110  S. 
W.  206;  Barnes  v.  German  Sav.,  etc.,  Soc,  21  Wash.  448,  58  P. 
569;  Tinkleion  v.  Spurch,  115  111.  App.  521;  Weeks  v.  Smith 
(N.J.  Sup.  '10),  75  A.  773. 

Unless  the  right  to  a  commission  is  made  conditional  upon 
a  sale  being  effected  at  the  price  fixed  in  the  broker's  authority. 
Armes  v.  Cqjneron,  19  D.  C.  435;  Buhl  v.  Noe,  51  III.  App. 
622;  Schwartz  v.  Yearly,  31  Md.  270;  Childs  v.  Ptomey,  17 
Mont.  502,  43  P.  714;  Briggs  v.  Eoive,  1  Abb.  Dec.  (N.  Y.)  189, 
4  Keyes,  424 ;  Steinfeld  v.  Storm,  63  N.  Y.  S.  966,  31  Misc.  167 ; 
Largent  v.  Story  (Tex.  Civ.  App.  '01),  61  S.  W.  977 ;  Mc Arthur 
v.  Slosson,  53  Wis.  41,  9  N.  W.  784;  Newton  v.  Conness  (Tex. 
Civ.  App.  '08),  106  S.  W.  892;  Rijan  v.  Page,  134  Iowa,  60, 
111  N.  W.  405 ;  Bridgeman  v.  Hephurn,  13  Brit.  Col.  389. 

Sec.  503.    Where  principal  agreed  to  pay  commissions  upon 
receipt  of  price,  broker  not  entitled  before. 

The  principal  agreed  to  pay  the  broker  a  commission  for 
selling  land  when  the  vendees  paid  a  certain  sum  and  gave 
their  note  and  mortgage  for  the  balance,  the  vendees  executed 
their  note  but  never  paid  the  money;  the  broker  was  not  en- 
titled to  commissions.  McPhail  v.  Buell.  87  Cal.  115,  25  P.  266; 
Ormshy  v.  Graham,  123  Iowa,  202,  98  N.  W.  724. 

Sec.  504.    Commissions  are  usually  payable  upon  completion 
of  the  transaction. 

A  real  estate  broker  is  entitled  to  the  commissions  agreed  on 
for  the  successful  negotiation  of  an  exchange  of  property  placed 
in  his  hands,  if  the  terms  of  the  exchange  are  accepted  by  the 
owner,  as  the  obligation  to  pay  the  commission  then  becomes 
fixed.  Lockwood  v.  Halsey,  41  Kan.  166,  21  P.  98.  In  the  ab- 
sence  of  a  provision  to  the  contrary  in  the  contract  of  em- 
ployment.   Frye  v.  Schwarz,  87  N.  Y.  App.  Div.  611. 


332  AMERICAN    IjAW    REAL   ESTATE   AGENCY. 

Sec.  505.  Broker  entitled  to  commissions  although  purchaser 
pays  more  than  he  authorized  broker  to  offer. 
"Where  the  principal  tried  to  get  the  broker  to  negotiate  a 
trade  of  his  land  for  a  house,  stating  that  he  was  willing  to 
give  $1,000  boot,  and  would  give  plaintiff  $100  if  the  trade 
was  consummated  and  the  trade  was  made  by  the  principal  con- 
senting to  give  more  boot,  the  broker  was  entitled  to  his  com- 
mission. Carson  v.  Baker,  2  Colo.  App.  248,  29  P.  1134.  In  the 
absence  of  an  agreement  limiting  to  a  fixed  price  beyond  which' 
the  purchaser  had  to  go  to  effect  the  purchase.  Lestrade  y. 
VaHsini,  6  La.  Ann.  399. 

Sec.  506.     Where  purchaser  defaulted  broker  entitled  te  com- 
missions on  actual  payment*. 

A  receiver  of  an  insolvent  bank  employed  the  services  of  an 
agent  to  effect  a  sale  of  certain  realty  which  he  held  in  right  of 
the  bank,  agreeing  that  the  agent  should  receive  ten  per  cent. 
commission  as  his  compensation :  tb(>rp  was  no  agreement  as  to 
when  such  commission  was  to  be  paid,  whether  out  of  the  cash 
payments,  or  on  payment  of  the  entire  purchase  money;  the 
agent  sold  the  property  for  $8^.000;  the  purchaser  paid  $10,000 
cash,  and  made  default  as  to  the  residue.  Held,  that  the  agent 
was  entitled  to  his  commission  on  so  much  of  the  purchase 
money  as  was  or  could  be  paid,  and  on  that  only.  Peters  v. 
Anderson,  88  Va.  10,^1.  14  S.  E.  974;  Murray  v.  Ekkard,  103 
Va.  132,  48  S.  F>.  871.     See  also  Sees.  297,  500. 

Sec.  507.     Cases  where  plaintiff  was  held  not  to  be  the  pro- 
curing cause  of  sale,  and  not  entitled  to  commissions. 

HaUiida]!  v.  Snulhfrn  Farm  Agency,  100  :\ld.  294,  59  A.  646.; 
Wood  V.  Burton.  47  X.  Y.  S.  184,  21  :\Iisc.  326;  Burd  v.  Webster, 
128  Wis.  118,  107  X.  W.  23;  Goff  v.  Burst  (Ky.  Ct.  App.  '09), 
122  S.  W.  148. 

Sec.  508.    Where  sale  frustrated  through  failure  to  partition, 
broker  entitled  to  commissions. 

Defendant  nutliorized  plaintiff,  a  real  estate  broker,  to  sell 
land.  Mild  tbronyli  him  n  contract  of  sale  to  W.  was  made  of  a 
definite  number  of  acres,  eiirhteen   of  which  were  to  be  made 


OOMMISSION    AND    COMPENSATION   OF   AGENTS.  333 

up  by  defendant's  having  a  thirty-six-acre  tract,  in  which  he 
had  an  undivided  half  interest,  partitioned ;  the  contract  pro- 
vided that  the  title  was  to  be  passed  on  by  W,'s  attorney;  the 
defendant  failed  to  have  the  partition  made,  stating  that  a 
division  line  had  been  adopted  by  him  and  his  co-tenant,  but 
there  was  no  evidence  of  this.  Held,  that  W.'s  refusal  to  per- 
form the  contract  on  account  of  the  failure  to  partition  being 
justified,  plaintiff  was  entitled  to  recover  his  commissions  of 
defendant.  Albritton  v.  First  Nat.  Bk.,  38  Tex.  Civ.  App.  614, 
86  S.  W.  646. 

Sec.  509.     Partial    performance    entitles    broker    to    recover 
neither  on  contract  nor  on  quantum  meruit. 

Where  a  petition  by  a  broker  to  recover  commissions  counted 
on  an  express  contract  by  defendant  to  pay  a  certain  price,  if 
plaintiff  obtained  a  purchaser  for  the  entire  tract  of  timber 
land,  etc.,  and  the  evidence  disclosed  only  a  partial  perform- 
ance, plaintiff  was  ndt  entitled  to  recover  on  a  quantum  meruit. 
Veatoh  v.  Norman,  109  IMo.  App.  387,  84  S.  W.  350;  Carpenter 
V.  Atlas  Imp.  Co.,  108  N.  Y.  S.  547,  123  App.  Div.  706.  See 
also  Sec.  935.    Mechem  on  Ag.  See.  635, 

Sec.  510.  Agent  in  charge  of  real  estate,  securing  responsible 
tenant,  entitled  to  recover  on  a  quantum  meruit. 
A  complaint  alleged  that  plaintiffs  were  employed  to  take 
charge  of  defendant's  real  estate,  as  agent  to  rent  the  same 
and  collect  the  rents;  that  they  performed  their  part  of  the 
contract  by  procuring  responsible  tenants  for  the  property; 
that  defendant  revoked  their  contract  of  agency,  without  com- 
pensating them  for  their  services.  Held,  that,  treating  the  acr 
tion  as  on  a  quantum,  meruit  for  services  on  a  contract  per- 
formed by  plaintiffs,  the  complaint  was  sufficient.  New  Kana- 
wha Coal  &  Mill.  Co.  V.  Wright,  163  Ind.  529,  72  N.  E.  550; 
LockJiart  v.  Hamlin,  190  N.  Y.  132,  82  N.  E.  1094. 

Sec.  511.     On  principal  selling,  broker  could  recover  for  ser- 
vices on  a  quantum  meruit. 

Where,  after  defendant  had  employed  plaintiff  to  sell  cer- 
tain standing  timber  at  s-^eci'^'ed   -^"i -p  and  terms,  he  availed 


334  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

himself  of  plaintiff's  services  and  sold  the  timber  to  an  employe 
of  the  person,  with  whom  plaintiff  had  been  negotiating  on 
different  terms,  plaintiff  was  entitled,  in  an  action  on  his  con- 
tract, to  join  a  prayer  for  a  recovery  of  the  reasonable  value 
of  the  services,  and  recover  on  a  quantum  meruit.  McDonald 
v.  Cahiness.  100  Tex.  615,  98  S.  W.  943,  affirmed  102  S.  W.  720. 
Compare  Johnson  v.  Va.  &  Car.  Lumber  Co.,  163  F.  249,  89 
C.  C.  A.  632 ;  Smith  v.  Va.  &  Car.  Lumber  Co.,  163  F.  249,  89 
C.  C.  A.  632. 

Sec.  512.     Principal  selling  for  less  than  agreed  price,  broker 
entitled  to  recover  on  a  quantum  meruit. 

An  agent  under  a  contract  with  his  principal  was  to  receive 
all  in  excess  of  a  stipulated  price  for  which  certain  timber 
sold,  provided  he  obtained  a  purchaser  at  a  price  considerably 
in  excess  of  the  minimum  price  stipulated,  but  the  principal 
sold  the  timber  on  different  terms  than  those  agreed  upon  in 
the  contract.  Beld,  that  the  agent  having  procured  the  pur- 
chaser was  entitled  to  recover  on  a  quantum  meruit,  although 
the  principal  had  changed  the  terms  of  the  sale  as  provided 
for  in  the  contract.  McDonald  v.  Cahiness,  100  Tex.  615,  102 
S.  W.  720;  Schultz  V.  Zelmar  (Tex.  Civ.  App.  '08),  111  S.  W. 
776. 

Sec.  513.  In  the  absence  of  an  express  contract  broker  pro- 
curing a  purchaser  may  recover  on  a  quantum  meruit. 
A  broker  to  procure  a  purchaser  for  real  estate  is  entitled 
to  such  commissions  as  are  usual  for  procuring  a  purchaser 
for  property  of  similar  character  and  value,  unless  a  different 
compensation  is  agreed  upon.  Walker  v.  Baldwin,  106  Md.  619, 
68  A.  25;  Hollis  v.  ^y«ston.  156  Mass.  357,  31  N.  E.  483;  Bart- 
man  V.  Warner,  75  Conn.  197,  52  A.  719;  Lansing  v.  Johnson, 
18  Neb.  174,  24  N.  W.  726 ;  Baer  v.  Koch,  21  N.  Y.  S.  974,  2 
Misc.  334;  Barrel  v.  Zimpleman,  %&  Tex.  292,  17  S.  W.  478; 
Phillips  V.  Roberts,  90  111.  492. 

Sec.  513a.    In  absence  of  fixed  rate  measure  of  broker's  com- 
pensation the  value  of  the  service  rendered. 

Upon  a  suit  by  a  broker  to  recover  ordinary  commissions  for 
effecting  the  sale  of  a  colliery,  it  appeared  that  commissions 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  335 

ranged  from  five  to  twenty-five  per  cent.  Held,  in  the  absence 
of  evidence  of  a  uniform  custom  or  usage,  that  the  measure 
of  plaintiff's  compensation  should  be  the  value  of  the  service 
rendered.    Potts  v.  AechtcrmacM,  93  Pa.  St.  138.    See  also  Sec. 

587. 

Sec.  514.    Demand  by  broker  for  $10,000  to  release  lien  de- 
feated his  right  to  commissions. 

Complainant 's  agent  executed  an  agreement  in  her  name,  with- 
out her  authority,  giving  defendant  the  exclusive  right  to  pur- 
chase or  sell  a  farm  for  a  period  of  one  year  for  $20,000,  and 
in  case  defendant  did  not  exercise  his  right  to  purchase,  but 
sold  the  property  he  was  to  receive  two  per  cent,  on  the  $20,000, 
and  all  the  farm  sold  for  above  such  sum  as  compensation  for 
his  services;  defendant  procured  a  prospective  purchaser  to 
whom  he  offered  the  farm  for  $20,000,  but  the  purchaser  de- 
clined to  buy  at  that  price,  and  subsequently  made  a  contract 
with  complainant  to  purchase  the  farm  for  $22,500;  as  soon 
as  defendant  discovered  the  purchaser  was  dealing  direct  with 
the  owner,  defendant  filed  his  contract  for  record,  claiming  an 
option  for  $20,000,  and  refused  to  release  the  same  unless  he 
was  paid  $10,000.  HeM.  that  such  act  clouded  the  title  and 
justified  the  purchaser's  refusal  to  complete  the  sale,,  depriving 
defendant  of  the  right  to  commissions.  Woolf  v.  Sullivan,  224 
111.  509,  79  N.  E.  646.    See  also  Sec.  290. 

Sec.  515.  First  broker  held  to  have  the  right  to  commissions 
by  second's  relinquishment. 
Where  M.,  who  was  to  receive  a  commission  for  a  sale  of  B.'s 
land,  turned  over  the  sale  of  the  land  to  L.,  agreeing  that  L. 
should  have  the  commissions  therefor,  to  which  B.  consented 
before  a  sale  was  made,  L.,  on  selling  the  land,  was  not  entitled 
to  a  commission  as  the  assignee  of  M.,  but  because  he,  with  the 
knowledge  and  consent  of  B..  sold  the  land  after  M.  had  waived 
his  right  to  do  so.  Munson  v.  Mabon,  135  Iowa,  335,  112  N.  W. 
775. 

Sec.  515a.    Waiver  of  variance  in  contract  by  acquiescence. 

Though  the  taking  of  notes  payable  on  or  before  maturity 
was  a  technical  variation  from  authority  to  sell  on  time  at  a 
specified  rate  of  interest,  the  vendor  waived  his  right  when, 


336  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

on  seeking  time  for  delivery  of  possession,  he  wrote  to  his  broker 
that  everything  else  would  be  all  right.  Watkins  v.  Thomas 
(Mo.  App.  '10),  124  S.  W.  1063. 

Sec.  516.    If  authority  to   secure   a  purchaser  is  revocable, 
broker  finding  after  barred  commissions. 

By  the  statement  of  a  real  estate  owner  to  a  broker  that  if 
the  latter  or  any  one  else  eonld  secure  a  purchaser  for  the  land 
by  a  certain  date,  on  terms  specified,  the  land  might  go,  gives 
the  broker  nothing  more  than  a  revocable  authority  binding  the 
owner  to  pay  commissions  only  in  case  a  purchaser  is  found 
before  revocation,  and  is  not  an  agreement  that  the  agency 
shall  continue  until  the  date  specified.  MUligan  v.  Oiven,  123 
Iowa,  285,  98  N.  W.  792;  Kmw  v.  Dawson.  52  Wash.  411,  100 
P.  837. 

Sec.  517.     If  the  customer  reserves  the  right  to  withdraw  from 
the  transaction  if  title  bad,  if  exercised,  bars  commissions. 

If  the  customer  reserves  the  privilege  to  withdraw  from  the 
transaction,  in  case  he  finds,  upon  examination,  that  the  title 
is  bad,  the  broker  is  not  entitled  to  a  commission  upon  the  cus- 
tomer's refusal,  by  the  exercise  of  the  reserved  privilege,  to 
make  the  purchase  for  that  reason.  Condict  v.  Cowdrey,  139 
N.  Y.  S.  273,  34  N.  E.  781 ;  ^Vcst  v.  Stoeckel  6  Ohio  Dec.  (Rep.) 
1082,  10  Am.  L.  Rec.  309 ;  Blankenskip  v.  Ryerson,  50  Ala.  426 ; 
Gilchrist  v.  Clarke,  86  Tenn.  583,  8  S.  W.  572;  Carter  v.  Har- 
rell  (Tex.  Civ.  App.  '09),  118  S.  W.  1139. 

Sec.  518.     Unless  exclusiva  rival  broker  not  entitled  to  com- 
missions on  sale  by  the  other. 

Unless  real  estate  brokers  had  the  exclusive  right  to  make 
a  sale  of  certain  property,  they  were  not  entitled  to  a  commis- 
sion if  the  sale  was  made  by  some  one  else,  even  though  they, 
secured  a  purchaser.  Jiothenherger  v.  Turner.  30  Ky.  L.  R. 
1018,  99  S.  W.  1150;  Hennings  v.  Persons,  108  Va.  1,  61  S.  E. 
866;  Mueller  v.  Bell  fTex.  Civ.  App.  '09),  117  S.  W.  993. 

Sec.  519.    Broker  and  sub-agent  stand  in  similar  relations  as 
to  compensation  as  do  principal  and  agent. 

A  real  estate  broker  and  his  sub-agent  stand  relatively  in 
the  same  position,  with  reference  to  the  right  to  compensation,; 


COMMISSION    AND   COMPENSATION   OP    AGENTS.  337 

as  do  the  principal  and  the  broker.  Leonard  v.  Roberts,  20 
Colo.  88,  36  P.  880;  Olsen  v.  Jordan,  38  Minn.  466,  38  N.  W. 
485;  Warren  Com.  t&  Inv.  Co.  v.  Hull,  120  Mo.  App.  432,  96 
S.  W.  1038;  Parker  v.  Merrell,  173  Mass.  391,  53  N.  E.  913; 
Whiting  v.  Saunders,  51  N.  Y.  S.  211,  23  Misc.  332;  Weinstein 
V.  Golding,  40  N.  Y.  S.  680,  17  Misc.  613;  Eastland  v.  Maney, 
36  Tex.  Civ.  App.  147,  81  S.  W.  574;  Blake  v.  Austen,  33  Tex. 
Civ.  App.  112,  75  S.  W.  571;  J.  B.  Watkin's  Ld.  Mtge.  Co.  v. 
Thetford  (Tex.  C.  A.  '06),  96  S.  W.  72;  Barthell  v.  Peter,  88 
Wis.  316,  60  N.  W.  429;  Madler  v.  Pozorski,  124  Wis.  477, 
102  N.  W.  892 ;  McCleary  v.  Willis,  35  Wash.  696,  77  P.  1073. 

Sec.  520.     Sub-agent  entitled  to  share  in  commissions  though 
he  violated  instructions. 

The  fact  that  a  sub-agent  in  his  first  negotiations  with  the 
customer  violates  the  instructions  of  the  owner  to  the  agent 
by  asking  more  than  the  price  fixed,  will  not  estop  him  from 
claiming  a  share  of  the  commissions  voluntarily  paid  to  the 
agent  on  the  sale  of  the  land,  as  the  oM^ner  alone  could  com- 
plain upon  that  ground.  Bussell  v.  Andrea,  79  Wis.  108,  48 
N.  W.  117. 

Sec.  520a.     Broker  liable  to  sub-agent  though  property  on  sale 
found  not  to  belong  to  vendor, 

A  real  estate  broker  employed  to  sell  land,  who  agrees  to  pay 
another  broker  a  commission,  if  he  procures  a  purchaser  there- 
for, is  liable  for  the  commission  if  a  purchaser  is  procured, 
though  he  afterwards  discovers  that  the  land  is  not  the  prop- 
erty of  the  principal.  Barthel  v.  Peter,  88  Wis.  316,  60  N. 
W.  429.    See  also  Sec.  519. 


CHAPTER  IX. 


SECTION. 

521.  Sub-agent    entitled    to   com- 

mission for  sale  made  af- 
ter revocation  of  author- 
ity. 

522.  Sub-agent  denied  recovery  of 

unlawful  commissions. 

523.  Typical   cases   in  which   the 

sub-agent  was  held  en- 
titled to  recover  share  of 
commissions. 

524.  Sub-agent  not  entitled  to  re- 

cover of  his  principal  for 
sale  made  at  reduced 
price. 

525.  Sub-agent    entitled    to    com- 

missions, though  he  failed 
to  give  the  name  of  pur- 
chaser. 

526.  Broker  selling  to  railroad  in- 

stead of  to  syndicate  en- 
titled to  commissions. 

527.  Broker   entitled   to  commis- 

sions though  sale  other 
than  that  contemplated. 

528.  Broker's    right    to    commis- 

sions not  affected  by 
owner's  suppositions. 

529.  Broker's  erroneous  advice  as 

to  liability  for  sewer  tax 
defeated  right  to  commis- 
sions. 

530.  Broker  failing  to  name  pur- 

chaser in  telegram  to  prin- 
cipal does  not  defeat  com- 
missions. 

531.  Where     vendor     sought     to 

vary  terms,  and  purchaser 
refused    to    take,    broker 
entitled  to  commissions. 
338 


SECTION. 

532.  Broker  entitled   to  commis- 

sions on  bringing  parties 
together,  though  they  con- 
tract on  different  terms. 

533.  On  making  a  sale  defect  in 

the  title  does  not  deprive 
broker  of  right  to  com- 
missions. 

534.  Where     customer     exercises 

right  to  withdraw  if  title 
defective,  broker  barred 
commissions. 

535.  Where    broker    is    to    have 

part  of  the  profits  on  the 
sale,  not  entitled  where 
it  fails  by  defect  in  title. 

536.  Payment  of  commissions  to 

broker  may  depend  on  the 
transfer  of  title. 

537.  Broker  not  entitled  to  commis- 

sions where  customer  re- 
fused to  complete  pur- 
chase on  account  of  a  sup- 
posed defect  in  the  title. 

538.  Whether     principal    or     an- 

other holds  the  title,  bro- 
ker on  producing  buyer 
entitled  to  commissions. 

539.  Where  sale  defeated  by  want 

of  title,  which  he  know, 
broker  barred  commis- 
sions. 

540.  Ignorance     of     contract     by 

holder  of  record  title  did 
not  defeat  broker's  right 
to  commissions. 


COMMISSION    AND    COMPENSATION    OF    AGENTS.  339 

SECTION.  SECTION. 

541.  Where  broker  produced  pur-       543.     Unavailing    efforts    to    per- 

chaser  and  sale  failed  by  form  do  not  entitle  broker 

a  dispute  over  taxes,  bro-  to  commissions. 

ker  barred  commissions.  544.     To  entitle  broker  to  commis- 

542.  After  memorandum  contract  sions  for  sale  his  negotia- 

signed,  and  purchaser  re-  tions  must  be  uninterrupt- 

fused   to   pay   water    tax,  ed. 

broker    entitled    to    com-       545.     Undisclosed  agreement  to  di- 

missions.  vide      commissions     with 

purchaser  does  not  bar 
broker's  right  thereto. 

Sec.  521.     Sub-agent  entitled  to   commission   for   sale   made 
after  revocation  of  authority. 

Where  the  owner  of  real  property  employed  an  agent  to  find 
a  purchaser  therefor,  and  the  latter,  within  the  scope  of  his 
authority,  but  without  the  owner's  knowledge,  employed  a  bro- 
ker for  the  same  purpose,  and  the  owner  revoked  the  authority 
given  to  the  agent,  and  the  broker  afterward,  without  notice 
of  the  revocation,  found  a  purchaser,  it  was  held  that  the  bro- 
ker could  recover  commissions  from  the  owner.  Lamson  v. 
Sims,  48  N.  Y.  Super.  Ct.  281.  Compare  Mechem  on  Ag.  Sec. 
197. 

Sec.  522.     Sub-agent  denied  recovery  of  unlawful  commissions. 

A  broker  procured  a  customer  for  another  broker,  with  the 
understanding  that  the  latt-er  should  charge  for  procuring  a 
loan  of  money  at  a  rate  prohibited  by  statute,  and  that  such 
commissions  should  be  divided.  Held,  that  suit  would  not  lie 
in  behalf  of  the  former  broker  for  his  share  of  such  commis- 
sions against  tbe  latter  broker  to  whom  they  had  been  paid 
by  the  customer.  Gregory  v.  Wilson,  36  N.  J.  L.  315.  Compare 
Sec.  497. 

Sec.  523.     Typical  cases  in  which  the  sub-agent  was  held  en- 
titled to  recover  share  of  commissions. 

The  owner  of  certain  real  estate  of  one  hundred  acres  in 
extent  placed  the  same  in  the  hands  of  defendants  with  au- 
thority to  sell  it  for  him  at  the  rate  of  $4,000  per  acre;  that 
thereafter  defendants  employed  plaintiffs  to  find  a  purchaser 
at  the  rate  of  $4,250  per  acre;  that  plaintiffs  found  parties  who 


340  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

M'orp  ready  and  willing  to  purchase  upon  the  terms  mentioned; 
that  thereafter  an  agreement  was  executed  whereby  defendants 
promised  to  pay  plaintiffs  a  commission  of  $5,000;  that  there- 
after the  sale  in  question  was  consummated  and  the  defend- 
ants received  and  accepted  from  the  purchasers  their  share  of 
the  purchase  money  from  such  sale,  amounting  in  money,  notes 
and  other  property  to  more  than  $10,000.  Beld,  that  plaintiff 
was  entitled  to  recover.  Olsen  v.  Jordan,  38  Minn.  466,  38  N. 
W.  485;  Warron  Com.  tf;  Inv.  Co.  v.  Hull,  120  Mo.  App.  432, 
96  S.  W.  1038 ;  Mnrjjhy  v.  HiUhridlfi,  132  Iowa,  114,  109  N.  W. 
471  ;  Prov.  Trust  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E.  1030; 
Taylor  v.  Barhour,  90  Miss.  888,  44  S.  988. 

Sec.  524.     Sub-agent  not  entitled  to  recover  of  his  principal 
for  sale  made  at  reduced  price. 

A  broker  for  the  sale  of  lands  who  agreed  to  pay  other  bro- 
kers a  certain  sum  out  of  his  own  commissions,  if  they  sold 
at  a  certain  price,  but  who  had  no  interest  in  the  land,  as  such 
brokers  knew,  is  not  liable  to  them  for  commissions  on  a  sale  at 
a  less  price.  Whitcomb  v.  Dickinson,  169  Mass.  16,  47  N.E.  426. 
See  also  Sec.  422. 

Sec.  525.     Sub-agent  entitled  to  commissions,  though  he  failed 
to  give  the  name  of  purchaser. 

"Where,  in  an  action  on  a  contract  for  division  of  broker's 
commissions,  there  was  evidence  that  defendant  sold  the  prop- 
erty to  the  purchaser  secured  by  plaintiff,  in  accordance  with 
the  contract  between  them  for  a  division  of  commissions,  and 
that,  at  the  time  of  the  sale,  defendant  knew  that  plaintiff  had 
procured  a  purchaser,  it  was  immaterial  that  plaintiff  failed 
to  impart  to  defendant,  prior  to  the  sale,  the  name  of  the  per- 
son with  Avhom  plaintiff  had  been  negotiating,  and  to  whom 
the  property  was  subsequently  sold.  McClearij  v.  Willis,  35 
Wash.  676,  77  P.  1073 ;  Feist  v.  Jerolomen  (N.  J.  Err.  &  App. 
'10),  75  A.  751.    See  also  Sees.  487,  530. 

Sec.  526.     Broker  selling  to  railroad  instead  of  to  syndicate 
entitled  to  commissions. 

A  broker  who  is  promised  a  commission  for  selling  a  street 
car  line  to  a  certain  syndicate  is  entitled  to  a  commission  on 
effecting  such  sale  to  a  railroad  company  organized  by  the  syn- 


COMMISSION    AND    COMPENSATION    OP    AGENTS.  341 

dicate,  and  the  fact  that  such  company  was  not  duly  incor- 
porated is  no  defense.  Smith  v.  Mayfield,  60  111.  App.  266. 
Compare  Graves  v.  Horton,  38  Minn.  66,  35  N,  W.  568. 

Sec.  527.     Broker  entitled  to  commissions  though  sale  other 
than  that  contemplated. 

To  recover  on  a  contract  providing  for  payment  for  services 
for  promoting  the  sale  of  a  street  railway,  on  the  conclusion 
of  "any  trade"  with  the  prospective  vendee,  it  is  immaterial 
that  the  trade  finally  consummated  was  not  the  negotiation 
pending  at  the  time  the  contract  was  made.  Alexander  v. 
Wakefield  (Tex.  Civ.  App.  '02),  69  S.  W.  77.    See  Sec.  532. 

Sec.  528.     Broker's    right    to    commissions    not    affected    by 
owners'  suppositions. 

The  fact  that  defendant  sold  to  a  person  who  he  thought 
was  purchasing  for  himself  and  not  for  the  church,  does  not 
affect  plaintiff's  right  to  his  commissions,  Avhere,  after  learn- 
ing that  the  purchase  was  for  the  church,  defendant  conveyed 
it,  when  he  might  have  avoided  the  contract.  McKnight  v. 
Thayer,  21  N.  Y.  S.  440;  Back  v.  Emerich,  35  N.  Y.  Super. 
Ct.  548. 

Sec.  529.     Broker's  erroneous  advice  as  to  liability  for  sewer 
tax  defeated  right  to  commissions. 

A  broker  Avas  employed  to  procure  a  purchaser  of  real  estate ; 
he  procured  a  purchaser  who  contracted  for  the  purchase  there- 
of; the  owner  executed  a  warranty  deed  conveying  the  prem- 
ises to  the  purchaser;  the  deed  was  not  delivered  and  the  pur- 
chase price  paid  over,  because  of  the  refusal  of  the  owner  to 
pay  the  cost  of  sewer  tax  bills  which  would  be  subsequently 
issued,  the  construction  of  the  sewer  being  in  progress  during 
the  transactions;  the  attorney  of  the  broker  erronously  advised 
that  the  owner  Avas  liable  for  the  tax  bills.  Held,  that  the  bro- 
ker was  not  entitled  to  commissions.  Mercantile  Trust  Co.  v. 
Niggeman,  119  Mo.  App.  56,  96  S.  W.  293. 

Sec.  530.    Broker  failing  to  name  purchassr  in  telegram  to 
principal  does  not  defeat  commissions. 

Where  a  broker  employed  to  effect  a  sale  has  found  a  pur- 
chaser willing  to  buy  upon  the  terms  named,  and  of  sufficient 


342  AMERICAN   LAW   REAL.  ESTATE   AGENCY. 

responsibility,  he  is  entitled  to  the  commissions,  although  in  the 
telegram  announcing  the  sale  he  did  not  name  the  purchaser. 
Duclos  V.  Cunnbighnm.,  102  N.  Y.  678,  6  N.  E.  790.  Compare 
Sees.  241,  525. 

Sec.  531.    Where  vendor  sought  to  vary  terms,  and  purchaser 
refused  to  take,  broker  entitled  to  commissions. 

Evidence  in  an  action  for  broker's  commissions  held  sufficient 
to  show  that  he  procured  a  purchaser  on  the  terms  named  by 
defendant,  and  that  the  purchaser  refused  to  enter  into  a  con- 
tract because  defendant  sought  to  vary  the  terms.  Milne  v. 
Ingersoll  Sealant  TtriU  Co.,  104  N.  Y.  S.  1053,  120  App.  Div. 
465;  Millan  v.  Porter,  31  Mo.  App.  563:  Buckingham  v.  Harris, 
10  Colo.  455,  15  Pac.  817:  Smith  y.  Fairchild,  7  Colo.  510,  4  P. 
757;  Firiley  v.  Di/er,  70  Mo.  App.  604;  McQuillen  v.  Carpenter, 
72  N.  Y.  App.  Div.  595,  76  S.  556 :  Beele  v.  Ranger.  35  N.  Y. 
Super.  Ct.  452;  Gorrtmn  v.  Scholle.  13  Daly,  516;  Michaelis  v. 
Ruffmann,  76  N.  Y.  S.  973.  37  Misc.  830:  Halprin  v.  Schachne, 
57  N.  Y.  S.  735,  27  ^Misc.  195;  Uattenhack  v.  Giindersheimer, 
13  N.  Y.  S.  814. 

Sec.  532.    Broker  entitled  to  commissions  on  bringing  parties 
together,  though  they  contract  on  different  terms. 

A  land  owner  can  not  avail  himself  of  the  services  of  an 
agent  who  procured  a  purchaser,  to  effect  a  sale  himself  to  such 
purchaser,  and  thereby  deprive  the  agent  of  his  commissions, 
nor  can  he  merely  to  save  the  commissions  agreed  to  be  paid 
to  the  agent,  effect  such  sale  at  a  small  reduction  from  the 
price  at  which  the  agent  was  authorized  to  find  a  purchaser, 
or  make  immaterial  changes  in  the  terms  of  the  sale.  CrooTc 
V.  Forst,  116  Ala.  395,  22  S.  540;  Knoivles  v.  Harvey,  10  Colo. 
App.  9,  52  P.  46;  Bryan  v.  Abert.  3  App.  Cas.  (D.  C.)  180; 
Henry  v.  Stewart.  185  111.  448,  57  N.  E.  190;  Snyder  v.  Fearer, 
87  111.  App.  275;  Lipsley  v.  Holridge.  71  111.  App.  652:  Adams 
V.  Decker,  34  III.  Ann.  17:  Lawrence  v.  Atwood.  1  Til.  Anp. 
211 ;  McFarland  v.  Lillard.  2  Ind.  Anp.  160.  28  X.  E.  229:  Welch 
V.  Young  (Iowa  Sup.  '99),  79  N.  "W.  59;  Marhtt  v.  Elliott,  69 
Kan.  477,  77  P.  104;  Coleman  v.  Meade,  13  Bush.  (Ky.)  358; 
Woods  v.  Stephens,  46  Mo.  555 ;  Henderson  v.  Mace,  64  Mo.  App. 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  343 

393;  0 'Toole  v.  Tuclcer,  40  N.  Y.  S.  695,  17  Misc.  554;  Jones 
V.  Henrtj,  36  N.  Y.  S.  483,  15  Misc.  151;  Keys  v.  Johnson,  68 
Pa.  St.  42;  Huntsman  v.  Arendt,  16  S.  D.  465,  93  N.  W.  653; 
Evans  v.  Gay,  38  Tex.  Civ.  App.  442,  74  S.  W.  575 ;  Rieger  v. 
Bigger,  29  Mo.  App.  421;  Corhal  v.  Beard,  92  Iowa,  360,  60 
N,  W.  636;  Lestrade  v,  Perrara,  6  La.  Ann.  398.  See  Sees. 
527,  68. 

Sec.  533.    On  making  a  sale  defect  in  the  title  does  not  de- 
prive the  broker  of  right  to  commissions. 

A  broker  employed  to  effect  a  sale  or  lease  of  property,  or 
employed  to  effect  a  loan  on  the  security  of  real  estate,  who 
acts  in  good  faith,  is  entitled  to  the  commission,  although  the 
transaction  fails  of  consummation  because  of  a  real  or  alleged 
defect  in  the  principal's  title,  if  the  broker  had  no  knowledge 
of  the  defect  in  the  title  at  the  time  of  finding  the  customer. 
Clark  V.  H.  G.  Thompson  Co.,  75  Conn.  161,  52  A.  720 ;  Phelps 
V.  Preusch,  83  Cal.  626,  23  P.  1111;  Middleton  v.  Findle,  25 
Cal.  76;  Martin  v.  Ede,  103  Cal.  157,  37  P.  199;  Smith  v. 
Schiele,  93  Cal.  144,  28  P.  857 ;  Dotson  v.  MiUikin,  27  App.  Cas. 
(D.  C.)  500;  Attix  V.  Phelan,  5  Iowa,  336;  Davis  v.  Lawrence, 
52  Kan.  383,  34  P.  1051;  Remington  v.  Sellers,  8  Kan.  App. 
806,  57  P.  551  :  Gornhart  v.  Reutschler,  72  111.  535;  Fitzpatrick 
V.  Gilson,  176  Mass.  477,  57  N,  E.  1000;  Toombs  v.  Alexander, 
101  Mass.  255;  Peet  v.  Sherwood,  43  Minn.  447,  45  N.  W.  859; 
Gauthier  v.  West,  45  Minn.  192,  47  N.  W.  656;  Roberts  v. 
Kinnons,  65  Miss.  332,  3  S.  736;  Fidlerton  v.  Carpenter,  97 
Mo.  App.  197,  71  S.  W.  98 ;  Bruce  v.  Wolfe,  102  Mo.  App.  384, 
76  S.  W.  723;  Ckristensen  v.  Woolleij,  41  Mo.  App.  53;  Ger- 
hart  V.  Peck,  42  Mo.  App.  644;  Holly  v.  Gosling,  3  E.  D.  Smith 
(N.  Y.),  262;  Egan  v.  Kiefordorf,  38  N.  Y.  S.  81,  16  Misc.  385; 
Finck  V.  Riner,  81  N.  Y.  S.  625,  40  Misc.  218 ;  Doty  v.  Miller, 
43  Barb.  (N.  Y.)  529;  Cusack  v.  Aikman,  87  N.  Y.  S.  940,  93 
App.  Div.  579;  Strout  v.  Kenney,  107  N.  Y.  S.  92;  Cox  v. 
Hawke,  93  N.  Y.  S.  1117 ;  Morgan  v.  Calvert,  110  N.  Y.  S.  855, 
126  App.  Div.  327 ;  Middleton  v.  Thompson,  163  Pa.  St.  112,  29 
A.  796;  McLaughlan  v.  Wheeler,  1  S.  D.  497,  47  N.  W.  816; 
Sweeney  v.  Ten  MUe  Oil  &  Gas  Co.,  130  Pa.  St.  193,  18  A.  612; 
Cheatham  v.  Yarbrough,  90  Tenn.  77,  15  S.  W.  1076;  Parker 
V.  Walker,  86  Tenn.  566,  8  S.  W.  391 ;  Berg  v.  San  Antonio  St. 


344  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

7?.  Co..  17  Tex.  Civ.  App.  201,  42  S.  W.  647,  43  S.  W.  929 
(T.  C.  A.  '98),  47  S.  W.  921;  Ilamhergcr  v.  Thomas  (Tex.  Civ. 
App.  '09),  118  S.  AV.  770;  Conklin  v.  Krakauer,  70  Tex.  735, 
11  S.  W.  117;  Green  v.  Lucas,  33  L.  T.  R.  N.  S.  (Eng  )  584; 
Godley  v.  Haley.  27  Ohio  Cir.  Ct.  606;  Bankers'  Loan  &  Inv. 
Co.  v.  Spindle,  108  Va.  426,  625  E.  266 ;  Pinkerton  v.  Hudson, 
133  S.  W.  35  (Ark.  Sup.  '08). 

The  broker's  eominissions  do  not  depend  upon  the  title  of 
his  customer,  whether  defective  or  whether  he  has  any  title. 
Jenkins  v.  Hollingsworth,  83  111.  App.  139;  Carnes  v.  Howard, 
180  Mass.  569.  63  N.  E.  122;  Foche  v.  Smith,  176  Mass.  595, 
58  N.  E.  152,  51  L.  R.  A.  510;  Knapp  v.  Wallace,  41  N.  Y.  497. 

Sec.  534.    Where  customer  exercises  right  to  withdraw  if  title 
defective,  broker  barred  commissions. 

It  has  been  held  that  if  a  customer  reserves  the  privilege  to 
M^ithdraw  from  the  transaction  in  case  he  finds  the  citle  de- 
fective upon  examination,  the  broker  is  not  entitled  to  com- 
missions upon  the  refusal  for  that  reason,  by  the  customer,  ex- 
ercising the  reserved  right,  to  complete  the  purchase.  Condict 
v.  Cowdrey,  139  N.  Y.  273.  34  N.  E.  781 ;  Crockett  v.  Grayson, 
98  Va.  354,  36  S.  E.  477 ;  Blankenskip  v.  Ryerson,  50  Ala.  426 ; 
Gilchrist  v.  Clarke,  86  Tenr.  583.  8  S.  W.  572;  Johnson  v.  Sut- 
ton (Miss.  Sup.  '09\  49  S.  970;  Arthur  v.  Porter  (Tex.  Civ. 
App.  '09),  116  S.  W.  127.     See  also  Sec.  225. 

Sec.  535.  Where  broker  is  to  have  part  of  the  profits  on  the 
sale,  not  entitled  where  it  fails  by  defect  in  title. 
"Where  a  broker  agrees  to  sell  land  upon  condition  that  the 
owner  shall  first  make  $500  out  of  the  sale,  the  broker  to  have 
the  rest  of  the  profit  as  his  commissions,  he  is  not  entitled  to 
the  commission  for  merely  finding  a  purchaser,  upon  a  sale  to 
such  purchaser  falling  through  on  account  of  a  defect  in  the 
title.  Seattle  Land  Co.  v.  Day,  2  Wash.  451,  27  P.  74.  Compare 
Druker  v.  Gunn,  41  Kan.  496,  21  P.  637.    See  also  Sec.  630. 

Sec.  536.     Payment  of  commissions  to  broker  may  depend  on 
the  transfer  of  title. 

"Where  a  broker's  commissions  were  not  to  be  paid  for  until 
and  unless  title  passed  and  the  purchaser  failed  to  complete 


COMMISSION    AND   COMPENSATION   OP   AGENTS.  345 

his  purchase,  no  right  to  commissions  accrued.  Fittiohauer  v. 
Van  Wyck,  92  N.  Y.  S.  2^1- Cooper  v.  O'Neill,  103  N.  Y.  S.  122, 
53  Misc.  319. 

Sec.  537.    Broker  not  entitled  to  commissions  where  customer 
refused  to  complete  purchase  on  account  of  a  supposed 
defect  in  the  title. 
A  landl  agent  is  not  entitled  to  commissions  or  compensation 
for  procuring  a  purchaser  of  a  plantation,  when  it  is  shown 
that  the  intended  purchaser  declined  to  complete  the  contract, 
without  fault  or  neglect  on  the  part  of  the  principal,  on  account 
of  a  supposed  defect  in  the  title.     BlnnkensMp  v.  Ryerson,  50 
Ala.  426 ;  Gilchrist  v.  Clark,  86  Tenn.  563,  8  S.  W.  572 ;  Sim- 
rail  V.  Arthur,  13  Ky.  L.  R.  (abst.)  682;  Pfang  v.  Humherg,  30 
Ohio  Cir.  Ct.  R.  711. 

Sec.  538.    Whether  principal  or  another  holds  the  title,  broker 
on  producing  buyer  entitled  to  commissions. 

Where  one  employs  a  real  estate  agent  to  find  a  purchaser 
for  property  which  he  represents  as  his  own,  and  on  the  agent 
producing  a  purchaser,  ready,  able  and  willing  to  pay  the  price, 
refuses  to  complete  the  sale,  he  is  liable  to  the  agent  in  an 
action  for  the  usual  commissions,  whether  the  property  belongs 
to  him  or  to  another.  Stanton  v.  Barnea,  72  Kan.  541,  84  P. 
116 ;  Cook  V.  Plait,  126  Mo.  App.  553,  104  S.  W.  1131. 

Sec.  539.    Where  sale  defeated  by  want  of  title,  which  he 
knew,  broker  barred  commissions. 

Where  the  broker  knew  that  the  principal  held  only  a  mort- 
gagee's interest  in  the  property,  and  might  not  be  able  to 
obtain  title  by  foreclosure,  the  broker  could  not  recover  com- 
missions for  negotiations  which  were  not  completed  because  the 
principal  did  not  obtain  title  throueh  such  proceedings.  Cor- 
hin  V.  Mechanics'  rf-  Traders'  Bank,  106  N.  Y.  S.  573,  121  App. 
Div.  744;  Montgomery  v.  Amster  (Tex.  C.  A.  '09),  122  S.  W. 
307. 

Sec.  540.    Ignorance  of  contract  by  holder  of  record  title  did 
not  defeat  broker's  right  to  commissions. 

Where  defendant,  having  an  option  on  land,  put  it  in  the 
hands  of  plaintiffs,  real  estate  agents,  to  trade,  and  they  traded 


346  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

it  with  one  who,  as  well  as  defendant,  to  the  knowledge  of 
both,  had  agreed  to  pay  the  commissions,  their  right  to  recover 
a  commission  of  defendant  is  not  affected  by  the  fact  that  the 
owners  of  the  record  title  of  defendant's  land,  with  whom  plain- 
tiff claimed  no  contractual  relations,  did  not  know  of  the  agree- 
ment as  to  the  commission.  Cook  v.  Plntt,  126  Mo.  App.  553, 
104  S.  W.  1131. 

Sec.  541.    Where  broker  produced  a  purchaser  and  a  sale 
failed  by  a  dispute  over  taxes,  broker  barred  commissions. 

A  broker  is  not  entitled  to  commissions  for  procuring  a  pur- 
chaser of  land,  where  the  principal  and  the  proposed  purchaser 
failed  to  consummate  the  sale  because  of  a  dispute  over  taxes. 
Guthman  v.  Meyer,  63  N.  Y.  S.-971,  31  Misc.  810.  See  also 
Sees.  465,  33. 

Sec.  542.    After  memorandum  contract  signed,  and  purchaser 
refused  to  pay  water  tax,  broker  entitled  to  commissions. 

Defendant  employed  plaintiff  to  procure  a  purchaser  for 
certain  property  at  a  specified  price;  plaintiff  secured  a  pur- 
chaser at  the  price:  defendant  received  a  payment  down  and 
signed  a  memorandum,  expressinsr  the  conditions  of  the  agree- 
ment as  to  the  terms  and  time  of  signing  a  formal  contract, 
but  at  the  asreed  time  she  refused  to  sign  the  contract  because 
the  purchaser  would  not  pay  the  water  tax,  which  had  then 
become  a  lien  on  the  property.  TIeld.  that  plaintiff  was  entitled 
to  his  commissions.  Brand  v.  Nagle,  107  N.  Y.  S.  156,  122  App, 
Div.  490. 

Sec.  543.    Unavailing   efforts   to   perform   do   not   entitle   a 
broker  to  commissions. 

A  broker  is  entitled  to  no  compensation  unless  a  bargain  be 
effected,  and  even  in  that  event  has  no  claim  for  reimbursement 
of  his  expenses.  Didem  v.  Duralde.  2  Rob.  (La.)  163;  Sher- 
burne Land  Co.  v.  Ell,  92  I\rinn.  114,  99  N.  W.  419;  West  v. 
Denwne,  128  Mich.  U,  87  N.  \Y.  95;  Shapiro  v.  Nadler,  99  N. 
Y.  S.  879,  51  Misc.  13:  ScMne  v.  Storch,  107  N.  Y.  S.  26.  56 
Misc.  484;  Ball  v.  Bolan  (S.  D.  Sup.  '08),  114  N.  W.  998; 
Bailey  v.  Carlton,  43  Colo.  4,  95  P.  542 ;  English  v.  Wm.  George 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  347 

Eealty  Co.  (Tex.  Civ.  App.  '09),  117  S.  W.  996.    See  also  Sec. 
290. 

Sec.  544.    To  entitle  a  broker  to  commissions  for  a  sale  his 
negotiations  must  be  uninterrupted. 

To  entitle  a  broker  to  eomraissions,  where  the  contract  con- 
cluded differs  from  that  which  the  broker  was  authorized  to 
negotiate,  the  negotiations  commenced  by  the  broker  must  have 
continued  uninterruptedly,  and  he  must  have  been  actively  in- 
strumental throughout  in  causing  the  parties  to  consummate  the 
transaction,  and  the  sale  made  was  satisfactory  to  the  owners. 
Woods  V.  Stephens,  46  Mo.  555;  Gold  v.  Sorrell,  26  N.  Y.  S. 
124. 

A  broker  employed  to  procure  a  purchaser  of  realtv  for  a 
fixed  per  cent,  of  the  price,  not  specified,  opened  negotiations 
with  a  third  person  and  introduced  him  to  the  owner.  The 
third  person  never  made  any  offer  to  the  broker,  and  the  oMTier 
refused  to  give  the  third  person  any  price  or  terms,  because 
others  were  then  negotiating  for  the  property.  The  broker  made 
no  further  efforts  to  bring  the  parties  together.  Manv  months 
later  the  owner  contracted  a  sale  to  the  third  person.  TJeld, 
that  the  broker  was  not  entitled  to  commissions.  Wheeler  v. 
Beers   (Colo.  Sup.   '09),  101  P.  758. 

Sec.  545.    Undisclosed  agreement  to  divide  commissions  with 
purchaser,  does  not  bar  broker's  right  thereto. 

An  agreement  by  real  estate  agents  to  divide  their  commis- 
sions with  the  purchaser  of  land,  made  without  the  knowledge 
of  their  principal,  does  not  affect  their  right  to  recover  the 
commissions  which  said  principal  agreed  to  pay.  Scoit  v.  Lloyd, 
19  Colo.  401,  35  P.  733:  Lemon  v.  Lloyd,  46  Mo.  Ann.  452; 
Lawler  v.  Armstrong  (Wash.  Sup.  '09).  102  P.  775:  Chase  v. 
Veal,  83  Tex.  333 ;  18.  S.  W.  597 ;  Forst  v.  Farmer,  46  N.  Y.  S. 
903,  21  Misc.  64. 


CHAPTER  X. 


Section. 

546.  Broker  not  entitled  to  com- 

missions until  he  has 
performed  his  undertak- 
ing. 
546a.  In  some  States  reasonable 
compensation  may  be  re- 
covered for  partial  per- 
formance of  an  entire  con- 
tract. 

547.  Broker  not  entitled  to  com- 

missions for  procuring 
contract  subject  to  ap- 
proval, which  is  withheld. 
547a.  Broker  entitled  to  commis- 
sion on  alternative  con- 
tract, which  did  not  bind 
the  buyer  even  although 
he  approved  the  title. 

548.  Broker   obtaining  purchaser 

for  vested  remainder  on 
diflferent  terms  barred 
commissions. 

549.  Broker   does   not  earn   com- 

missions if  contract  to  be 
void  if  first  payment 
fails. 

550.  Variance  as  to  name  of  ranch 

sold  did  not  deprive  bro- 
ker of  right  to  recover 
commissions. 


SECTION. 

551.  Broker  not  entitled  to  com- 

missions for  contract  too 
vague  for  enforcement,  on 
failure  of  customer  to 
take. 

552.  Withdrawal    of    land    from 

sale  entitled  broker,  un- 
der contract,  to  commis- 
sions. 

553.  Withdrawal     and     sale     by 

owner    in    good  faith    to 

customer  bars  broker's 
commissions. 

554.  Principal     paying  commis- 

sions to  broker  before  pur- 
chaser withdrawing  can- 
not recover  same. 

555.  Broker  entitled   to   commis- 

sions where  sale  failed  be- 
cause rights  of  two  heirs 
were  not  acquired, 

556.  Where    purchaser   is   in   de- 

fault, broker  not  entitled 
to  commissions. 

557.  When  commissions  are  earned 

by  broker. 

558.  When   commissions   are   not 

earned  by  broker. 


Sec.  546.    Broker  not  entitled  to  commissions  until  he  has  per- 
formed his  undertaking. 

A  broker  is  not  entitled  to  compensation  until  he  has  per- 
formed his  nndertaldnff.     Ivji  Coal  Co.  v.  Long,  139  Ala.  535, 

36  So.  722 ;  Manhy  v.  Turner,  13  Colo.  App.  358,  57  P.  862 ;  Cas- 
348 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  349 

ton  V.  Quimhy,  178  Mass.  153,  59  N.  E.  653,  52  L.  R.  A.  785; 
West  V.  Stoeckd,  6  Ohio  Dec.  (Rep.)  1082,  10  Am.  L.  R.  309; 
Ball  V.  Dolawi^.  D.  Sup.  '08),  314  N.  W.  998;  Wi'g^ms  v.  Wil- 
son, 55  Fla.  346,  45  S.  1011. 

If  an  entirety  broker  must  show  full  performance,  as  a  con- 
dition precedent.    IMechem  on  Ag.  Sec.  635. 

Sec.  546a.  In  some  States  recovery  may  be  had  for  partial 
performance  of  an  entire  contract  in  an  action  for  rea- 
sonable compensation  therefor. 

In  some  States  the  doctrine  of  quantum  meruit  prevails  to 
recover  on  failure  to  perform  an  entire  contract  the  reasonable 
value  of  the  services  rendered — Michigan,  Iowa,  Nebraska, 
Kansas,  Texas,  Indiana,  Missouri  and  Mississippi.  Mechem  on 
Agency  Sec.  637. 

Sec.  547.  Broker  not  entitled  to  commissions  for  procui-ing 
contract  subject  to  approval  which  is  withheld. 

A  broker  is  not  entitled  to  a  commission,  where  he  procures  a 
contract  between  the  parties  subject  to  approval,  and  that  ap- 
proval has  been  withheld.  Halprine  v.  SchacJine,  54  N.  Y.  S. 
1103,  25  Misc.  797 ;  Hammond  v.  Crawford,  66  Fed.  425,  14  C. 
C.  A.  109 ;  Hamlin  v.  Schulte,  31  Minn.  486 ;  Gough  v.  Coffin 
(Tex.  Civ.  App.  '09),  120  S.  W.  210;  Oliver  v.  Sattler,  233  111. 
536,  84  N.  E.  652.     See  references  under  Sec.  307. 

Sec.  547a.    Broker  entitled  to  commission  on  alternative  con- 
tract, which  did  not  bind  the  buyer,  even  although  he 
approved  the  title. 
That  the  agreement  with  the  broker  was  in  the  alternative, 
and  did  not  bind  the  buyer  to  buy  even  if  he  approved  the 
title,  would  not  defeat  the  broker's  right  to  compensation,  since 
it  was  the  fact  that  the  title  was  not  clear  to  the  purchaser 
that  defeated  the  sale.    Hamherger  v,  Thomas  (Tex.  Sup.  '10), 
126  S.  W.  561. 

Sec.  548.  Broker  obtaining  purchaser  for  vested  remainder 
on  different  terms  barred  commissions. 

Where  plaintiff  was  employed  to  sell  a  vested  remainder 
owned  by  defendant  for  $55,000  net  to  the  defendant,  the  pur- 


350  AMERICAN    LAW   REAL  ESTATE   AGENCY. 

chaser  to  receive  $175,000  if  the  life  tenant  should  live  less 
than  ten  years,  and  $195,000  if  she  should  live  more  than  eleven 
years,  and  the  purchaser  to  be  required  to  reassign  to  the  de- 
fendant $10,000  if  the  life  tenant  should  die  within  eleven 
years,  $20,000,  if  within  ten  years,  $25,000,  if  within  nine  years, 
and  $28,000,  if  within  eisfht  years,  and  the  purchaser  accepted 
the  proposition  to  buy,  and  instead  of  $195,000,  with  certain 
continarent  sums  to  be  reassigned  on  the  death  of  the  life  tenant 
within  ten  years,  not  corresponding  to  those  provided  in  the 
terms  of  the  contract  with  plaintifP,  he  was  not  entitled  to  re- 
cover the  agreed  compensation  for  his  services.  Header  v. 
Brown,  102  N.  Y.  S.  32,  116  App.  Div.  734.  See  references 
under  Sec.  307. 

Sec.  549.     Broker  does  not  earn  commissions  if  contract  to 
be  void  if  first  payment  fails. 

A  broker  employed  to  effect  a  sale  does  not  earn  his  com- 
missions bj^  procuring  one  who  enters  into  a  contract  with  the 
principal  which  provides  that  the  contract  shall  be  void  if 
the  first  of  several  payments  of  the  price  is  not  paid  within 
the  stipulated  time.  Ramsey  v.  West,  31  Mo.  App.  676 ;  Jones 
V.  Eilenfelt,  28  Wash.  687,  69  P.  368.  See  references  under 
Sec.  307. 

Sec.  550.  Variance  as  to  name  of  ranch  sold  did  not  deprive 
broker  of  right  to  recover  commissions. 
"Where  the  plaintiff,  in  an  action  by  a  broker  to  recover  com- 
missions, set  out  in  haeo  verba  the  written  contract,  which  spoke 
of  the  land  as  the  "Abbey  Ranch,"  the  fact  that  the  plaintiff 
showed  where  the  land  was  situate  did  not  create  a  variance 
between  the  contract  set  out  and  the  one  pleaded  in  its  legal 
effect.    Hill  v.  McCoij,  1  Cal.  App.  159,  81  P    1015. 

Sec.  551.  Broker  not  entitled  to  commissions  for  contract  too 
vague  for  enforcement  on  failure  of  customer  to  take. 
A  real  estate  broker  employed  to  sell  property  procured  from  a 
prospective  purchaser  the  following  signed  memorandum :  "I  au- 
thorize Mr.  ]\r.  to  offer  $220,000  for  Mr.  K.'s  house,  comer  o.'' 
Sixty-fourth  and  Fifth  Avenue,  July  27,  1894,  signed,  J.  T. 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  351 

Martin."  Held,  that  it  was  at  most  a  provisional  proposition, 
leaving  unexpressed  essential  details,  and  was  too  vague  and 
uncertain  to  entitle  a  real  estate  broker  procuring  it  to  his  com- 
missions from  the  vendor,  where  the  proposed  purchaser  re- 
fused to  complete  the  sale.  Montgomery  v.  Knickerhacher,  50 
N.  Y.  S.  128,  27  App.  Div.  117.    See  also  Sec.  556. 

Sec.  552.    Withdrawal    of   land    from    sale    entitled    broker, 
under  contract,  to  compensation. 

By  the  terms  of  the  contract  of  employment  between  the 
owners  of  land  and  a  broker,  commissions  became  due  upon 
withdirawal  of  the  property  from  sale  within  a  certain  time. 
Held,  that  the  notice  recited  that  it  was  given  under  the  con- 
tract by  the  owner  to  the  broker  not  to  sell  said  land,  that 
it  had  been  withdrawn  from  the  market  within  that  time, 
while  the  owner  was  repudiating  a  sale  by  the  broker,  was 
a  withdrawal  of  the  premises  from  sale  by  entitling  the  broker  to 
his  commissions,  not  as  damages  for  a  breach  of  the  contract  but 
as  a  debt.  Maze  v.  Gordon,  96  Cal.  61,  30  P.  962;  Gamble  v. 
Cleveland  Cliffs  Iron  Co.,  158  Fed.  49,  89  C.  C.  A.  379.  Com- 
pare Sees.  132,  585. 

Sec.  553.    Withdrawal  and  sale  by  owner  in  good  faith  to  cus- 
tomer bars  broker's  commissions. 

A  real  estate  broker  is  not  entitled  to  conmiissions  on  a  sale 
of  property  by  the  owmer,  after  he  has  in  good  faith  with- 
drawn it  from  the  hands  of  the  broker,  at  a  time  when  no 
negotiations  are  pending,  though  the  sale  is  made  to  one  to 
whom  the  broker  made  an  effort  to  sell.  Stedman  v.  Richard- 
son, 100  Ky.  79,  18  Ky.  L.  R.  567,  37  S.  W.  259. 

Sec.  554.     Principal  paying  commissions  to  broker  before  pur- 
chaser  withdrawing  can  not  recover  same. 

Where  a  principal  pays  a  broker  his  commission  before  the 
purchaser  withdraws  from  the  transaction,  the  broker  being 
entitled  thereto  will  retain  the  same.  Moore  v.  Irvin  (Ark.  Sup. 
'09),  116  S.  W.  662;  ConMin  v.  Krakaiier,  70  Tex.  735,  11  S.  W. 
117;  Emerson  v.  Coddington,  55  N.  Y.  Super.  Ct.  336.    Except 


3o2  AMERICVN    I.WV    KEAL   ESTATE    AGENCY. 

when  the  broker  has  acted  iu  bad  faith.     Lockwood  v.  Halsey, 
41  Kan.  166,  21  P.  98. 

Sec.  555.  Broker  entitled  to  commissions  where  sale  failed 
because  rights  of  two  heirs  were  not  acquired. 
"Where  a  sale  of  land  negotiated  by  plaintiff  for  defendant 
failed  because  the  record  did  not  show  that  the  defendant  had 
acquired  the  alleged  outstanding  interests  of  two  heirs  in  the 
land,  plaintiff's  right  to  recover  commissions  was  not  affected 
by  the  fact  that  at  the  time  of  the  purchaser's  refusal  to  accept 
title  there  was  a  will  in  existence  under  Avhich  defendant  ac- 
quired full  title  to  the  property,  and  of  which  will  none  of 
the  parties  had  knowledge.  Weaver  v.  Richards,  144  Mich.  395, 
108  X.  W.  382.  6  L.  R.  I\.  n.s.  8515. 

Sec.  556.    Where  purchaser  is  in  default,  broker  not  entitled 
to  commissions. 

A  contract  for  the  purchase  of  real  estate  provided  that  the 
same  should  be  void,  at  the  will  of  the  vendor,  if  default  should 
be  made  by  the  vendee  in  completing  the  purchase  by  making 
the  future  cash  payments  and  executing  a  mortgage  for  the 
balance  of  the  purchase  price,  time  being  of  the  essence  of  the 
contract,  $500  cash  paid  upon  the  execution  to  be  forfeited  by 
the  vendee;  a  commission  contract  executed  at  the  same  time, 
provided  that  the  vendor  w^ould  pay  the  broker  a  certain  sum 
if  the  contract  of  purchase  should  be  performed  by  making  the 
payments  and  executing  the  mortgage  as  provided.  .  Held,  that 
the  vendee  having  failed  to  make  the  deferred  cash  payments 
and  to  execute  the  mortgage,  the  vendor  having  been  ready, 
willing  and  able  to  perform  the  contract  until  such  de- 
fault, could  take  advantage  thereof,  cancel  the  contract,  and 
remove  the  cloud  from  the  record  by  appropriate  legal  proceed- 
ings; under  such  circumstances  the  commission  was  not  earned. 
Van  Norman  v.  Fitchett,  100  Minn.  145,  110  N.  W.  851.  See 
also  Sees.  179,  551. 

Sec.  557.    When  commissions  are  earned  by  broker. 

Where  an  agent,  given  authority  to  sell  land,  exercises  his 
discretion  as  to  price,   examines  the  title,  and  fixes  the  price 


COMMISSION   AND   COMPENSATION    OF    AGENTS.  353 

and  terms,  he  may  employ  a  real  estate  broker  to  find  a  pur- 
chaser, and  a  sale  by  hira  will  be  enforced,  if  he  was  required 
to  obtain  his  commission  in  addition  to  the  price  agreed  on,  al- 
though the  agent  may  have  been  requested  by  his  principal  not 
to  employ  a  sub-agent.  Benwick  v.  Bancroft,  56  Iowa,  527,  9 
N.  W.  367. 

One  for  whom  a  broker  assumes  to  act,  without  authority, 
may,  by  accepting  the  benefits  of  the  broker's  services,  ratify 
the  act,  and  so  make  himself  liable  for  compensation,  provided 
the  principal  does  so  with  knowledge  that  the  broker  assum.ed 
to  act  for  him  as  such.  Merrill  v.  Latham,  8  Colo.  263.  45  P. 
524;  Daijton  v.  Am.  Steel  Barge  Co.,  73  N.  Y.  S.  316.  36  Misc. 
223;  McKinne  v.  Hope,  118  Ga.  462,  45  S.  E.  413;  Downing 
v.  Buck,  135  Mich.  636,  98  N.  W.  388;  Ennt  v.  Jones,  105  Mo. 
App.  106,  79  S.  W.  486;  Charles  v.  Cook,  84  N.  Y.  S.  867,  88 
App.  Div.  81 ;  Lxjle  v.  Bennett.  70  N.  Y.  S.  283,  34  Misc.  476 ; 
Markham  v.  Waslihurn,  18  N.  Y.  S.  355;  McCormack  v.  Mc- 
Caffery,  74  N.  Y.  S.  836,  36  Misc.  775 ;  Twelfth  Street  Market  v. 
Jackson,  102  Pa.  St.  269 ;  Graves  v.  Bains,--lS  Tex.  92,  14  S.  W. 
256. 

A  departure  by  a  real  estate  agent  from  the  terms  of  his 
authority  is  cured  by  the  principal's  subsequent  ratification, 
and  the  compensation  fixed  by  the  original  contract  of  employ- 
ment controls.  Gelatt  v.  Ridge.  117  Mo.  553,  23  S.  W.  882. 
A  broker  employed  to  sell  at  a  certain  commission  may  employ 
a  sub-agent  for  a  share  of  the  commission,  and  recover  from 
his  principal  the  commission  agreed  to  be  paid.  Carter  v.  Web- 
ster, 79  111.  435 ;  Boyd  v.  Watson,  101  Iowa,  214,  70  N.  W.  120 ; 
Henning  v.  Burch,  90  Minn.  43,  95  N.  W.  578 ;  Corning  v,  Cal- 
vert, 2  Hilt.  (N.  Y.)  56. 

A  real  estate  broker  who  undertakes  to  furnish  a  purchaser 
is  bound  to  act  in  good  faith,  and  when  one  is  presented,  the 
employer  is  bound  to  accept  him  or  to  pay  the  commission, 
provided  the  customer  is  able,  ready  and  willing  to  make  the 
purchase  on  the  terms  stipulated.  Coleman  v.  Meade,  13  Bush. 
(Ky.)  358;  Barher  v.  Heade,  30  Ohio  Cir.  Ct.  R.  127;  Stewart 
v.  Fowler,  53  Kan.  537,  36  P.  1002;  Bach  v.  Emerich.  35  N.  Y. 
Super.  Ct.  548;  Eraser  v.  Wychoff,  63  N.  Y.  445;  Dreyer  v. 
Bauch,  42  How.  Pr.  (N.  Y.)  22,  3  Daly,  434;  Martin  v.  Billings, 


354  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

2  City  Ct.  R.  (N.  Y.)  85;  Pratt  v.  Patterson,  112  Pa.  St.  475, 

3  A.  858. 

In  an  action  for  a  commission  for  selling  property  where  it 
appeared  that  defendant  gave  plaintiff  a  written  option  to  pur- 
chase land,  it  is  competent  to  show  a  parol  agreement  by  which 
the  plaintiff  was  to  find  a  purchaser  and  to  receive  as  com- 
missions all  realized  on  the  sale  above  a  specified  amount,  and 
that  such  option  contract  was  executed  for  the  convenience  of 
plaintiff,  and  the  broker  was  held  entitled  to  recover  his  com- 
missions.    Ricmer  v.  Rice,  88  Wis.  16,  59  S.  W.  450. 

An  agreement  hj  real  estate  agents  to  divide  their  commis- 
sions with  the  purchaser  of  land,  made  without  the  knowledge 
of  the^r  principal,  does  not  affect  their  right  to  recover  the 
commissions  which  such  principal  agreed  to  pay.  Scott  v.  Lloyd, 
19  Colo.  401,  35  P.  733;  Lemon  v.  Lloyd,  46  Mo.  App.  452; 
Chase  v.  Veal,  83  Tex.  333,  18  S.  W.  597;  Forst  v.  Farmer, 
46  X.  Y.  S.  903,  21  Misc.  64. 

A  broker  may  be  entitled  to  compensation  other  than  a  com- 
mission ;  e.  g.,  for  finding  a  purchaser,  to  the  reasonable ;  Haw- 
kins V.  Chandler,  8  Houst.  (Del.)  434,  32  A.  464;  Beister  v. 
Evans,  59  111.  App.  181;  McMnrtry  v.  Madison,  18  Neb.  291, 
25  N.  W.  85;  Donald  v.  Lawson,  87  N.  Y.  S.  485;  Alexander 
V.  Wakefield  (Tex.  Civ.  App.  '02),  69  S.  W.  77;  or  agreed 
value  of  the  ser\'ices  rendered.  Delaplaine  v.  Turnley,  44  Wis. 
31. 

A  broker  may  be  entitled  to  a  commission  on  a  sale  effected 
by  the  principal,  without  the  broker's  co-operation,  if  the  con- 
tract so  provides.  Keniwell  v.  Shelly,  130  Cal.  555,  62  P. 
1067 ;  Haskins  v.  Fogg,  60  N.  H.  402. 

If  a  broker  merely  brings  together  two  parties  who  de- 
sire to  exchange  or  sell  their  land,  and  his  employment  then 
ends,  and  the  parties  themselves  settle  the  terms  of  the  trans- 
action, he  is  a  mere  middleman  and  may  recover  a  commission 
from  each  party,  if  each  has  agreed  to  pay  him.  Clark  v.  Allen, 
125  Cal.  276,  57  P.  985;  Manders  v.  Croft,  3  Colo.  App.  236, 
32  P.  836 ;  Cox  V.  Haren,  127  Tnd.  325,  26  N.  E.  822 ;  MuUer 
V.  Kutzleh,  7  Bush.  (Ky.)  253;  Rnpp  v.  Sampson.  16  Gray 
(Mass.),  398;  Montross  v.  Eddy,  94  Mich.  100,  53  N.  W.  916; 
Ranney  v.  Donavan,  78  Mich.,  318,  44  N.  W.  276;  Childs  v. 


COMMISSION    AND    COMPENSATION   OF    AGENTS.  355 

Ptomey,  17  Mont.  502,  43  P.  714;  Knauss  v.  Gottfried-Krueger 
Breiving  Co.,  142  N.  Y.  70,  36  N.  E.  867;  Norton  v.  Genesee 
Nat.  Sav.,  etc.,  Ass%  68  N.  Y.  S.  32,  57  App.  Div.  520;  Siegel 
V.  Gould,  7  Lans.  (N.  Y.)  177;  Bomvell  v.  Aidd,  29  N.  Y.  S. 
15,  9  Misc.  65;  Balheimer  v.  Richardt,  55  IToav.  Pr.  414;  Havi- 
land  V.  Price,  26  N.  Y.  S.  757,  6  Misc.  372 ;  Collins  v.  Fowler,  8 
Mo.  App.  588. 

Where  a  contract  is  signed  by  the  bnyer  and  seller  which 
contains  stipulations  by  each  in  favor  of  the  other  of  nearly 
equal  value,  the  broker  who  brought  them  together  is  the  proper 
custodian  thereof,  in  the  absence  of  other  arrangements,  and 
a  delivery  to  the  broker  by  each,  after  signing,  amounts  to  a 
delivery  to  the  other,  and  the  final  delivery  by  the  seller  to 
the  broker  completes  the  execution  as  a  binding  agreement, 
so  as  to  entitle  the  broker  to  his  commissions  for  finding  a  pur- 
chaser.    Green  v.  H oiling shead.  40  111.  App.  195. 

Where  the  minds  of  the  vendor  and  the  purchaser  have  met 
on  a  contract  to  sell  real  estate,  the  broker  who  procured  the 
execution  of  such  contract  is  entitled  to  recover  his  promi'sed 
commission,  notwithstanding  any  vagueness  in  the  terms  of  the 
agreement.  Folinshee  v.  Sawyer,  36  N.  Y.  S.  405,  15  Misc.  293, 
51  N.  E.  994,  157  N.  Y.  196.  If  the  right  to  a  commission  is 
dependent  upon  the  payment  of  the  price  by  the  purchaser, 
the  broker  must  show  either  payment,  Burnett  v.  Edling,  19  Tex. 
Civ.  App.  711,  48  S.  W.  775,  or  a  tender  thereof,  or  he  is  not 
entitled  to  a  commission.    FisJce  v.  Soule,  87  Cal.  313,  25  P.  430. 

Under  a  contract  providing  for  the  payment  of  commissions 
**at  the  date  of  the  payment  of  the  purchase  price,"  or  "in 
installments  acording  to  payments  by  said  purchaser,"  the  bro- 
ker was  entitled  to  his  commissions  on  each  partial  payment, 
payment  of  commissions  not  being  dependent  on  the  payment 
of  the  entire  purchase  price,  although  the  principal,  a  part 
owner,  received  no  part  of  the  payments.  Frank  v.  Bonnevie, 
20  Colo.  App.  164,  77  P.  363. 

A  proviso  in  a  broker's  contract  that  the  commission  shall 
be  payable  out  of  the  first  cash  payment,  is  not  a  condition 
precedent  to  the  broker's  right  to  recover  commissions,  and 
does  not  mean  that  unless  there  is  a  cash  payment,  there  is 


356  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

to  be  no  commission  paid.  FiQvch  v.  Guardian  Trust  Co.,  92 
Mo.  App.  263. 

The  mere  fact  that  the  interest  and  insurance  clauses  in  the 
contract  of  sale  had  not  been  definitely  arranged  before  the 
day  on  which  the  contract  was  presented  for  signature,  no 
objection  being  raised  by  the  purchaser,  will  not  deprive  the 
broker  of  his  commissions.  Beebe  v.  Banger.  35  N.  Y.  Super. 
Ct.  452.  And  the  broker  does  not  lose  his  right  to  a  commis- 
sion merely  because  the  principal  and  the  customer  can  not, 
in  an  agreement  for  an  exchange,  be  brought  to  terms  on  a 
particular  point,  if  they  come  to  a  general  agreement.  Wychoff 
V.  Bliss,  12  Daly  TN.  Y.),  324.    Compare  Sec.  33. 

The  right  of  a  broker  who  has  obtained  a  purchaser  is  not 
affeeted  by  the  fact  that  the  veirdor  did  not  understand  the 
contract  as  written,  where  the  broker  himself  Avas  not  guilty 
of  fraud  or  deception.  Bach  v.  Emerich,  35  N.  Y.  Super.  Ct. 
548;  McK night  v.  Thdger,  21  N.  Y.  S.  440. 

The  fact  that  the  contract  bound  the  purchaser  only  to  forfeit 
a  cash  payment  of  $500  is  immaterial,  where  it  appears  that 
a  tender  of  the  whole  price  was  made  by  the  purchaser  to  the 
vendor,  who  refused  to  convey  the  property,  and  the  broker 
was  entitled  to  recover  commissions.  FisJce  v.  Soule,  87  Cal. 
313,  25  P.  430. 

There  are  cases  holding,  that  if  the  negotiations  between  the 
principal  and  the  customer  continue  uninterruptedly  after  the 
expiration  of  the  time  allowed  the  broker,  and  a  sale  is  made 
of  which  the  broker  is  the  procuring  cause,  he  is  entitled  to 
a  commission,  although  the  broker  did  not  bring  the  parties 
to  terms  within  the  time  limited  in  the  contract  of  employ- 
ment. Griswold  v.  Pierce,  86  111.  App.  406;  Jaeger  v.  Glover, 
89  Minn.  490.  95  N.  W.  311:  Goife  v.  Gibson,  18  :^Io.  App.  1; 
Michaelis  v.  Gaeren,  41  N.  Y.  S.  563,  9  App.  Div.  495,  75  N. 
Y.  St.  952;  Vanderveer  v.  Suydam,  31  N.  Y.  S.  392,  83  Hun, 
116;  Shipman  v.  Willeson,  112  N.  Y.  S.  895. 

To  be  entitled  to  a  commission  where  no  sale  is  actually  made, 
a  broker  employed  to  find  a  purchaser  must  either  produce 
to  the  owner  a  customer  who  is  able,  ready  and  willing  to  buy 
on  the  terms  prescribed  by  the  owner,  or  else  take  from  the  cus- 
tomer a  binding  contract  of  purchase.    Bingham  v.  Davidson,  141 


COMMISSION    AND    COMPENSATION   OF   AGENTS,  357 

Ala.  551,  37  S.  738 ;  SharpUy  v.  Moody,  44  S.  650,  152  Ala.  549 ; 
Saijre  v.  Wilson,  86  Ala.  151,  5  S.  157 ;  Crook  v.  Forst,  116  Ala. 
395,  22  S.  540;  Boyson  v.  Frink,  80  Ark.  254,  96  S.  W.  1056; 
Gunn  V.  State  Bank,  99  Cal.  349,  33  P.  1105;  Hill  v.  McCoy, 
1  Cal.  App.  159,  81  P.  1015 ;  Carlin  v.  Lifuer,  2  Cal.  App.  590, 
84  P.  292;  Vandercook  v.  Wilmans  (Cal.  App.  '06),  87  P. 
1116;  Shanks  v.  Michael,  4  Cal.  App.  553,  88  P.  596;  Coward 
V.  Clinton,  122  Cal.  451,  55  P.  147 ;  Quitzon  v.  Perrin,  120  Cal. 
255,  52  P.  632;  Zeimer  v.  Antisell,  75  Cal.  509,  17  P.  642; 
Masten  v.  Griffing,  33  Cal,  111 ;  Wagner  v.  Morris,  39  Colo.  106, 
88  P.  973;  SilherUrg  v.  Chipman,  42  Colo.  20,  93  P.  1130; 
King  Powder  Co.  v.  Dillon,  42  Colo..  316,  96  P.  439;  Ross  v. 
Smiley,  18  Colo.  App.  204,  70  P.  766 ;  Buckingham  v.  Harris, 
10  Colo.  455,  15  P.  817;  Carter  v.  Oivens  (Fla.  Sup.  '09),  50 
S.  641;  Furlow  \  Benoit  (La.  Sup,  '09),  50  S.  785;  Anderson 
V.  Olsen  (Minn.  ;.up.  '10),  124  N.  W.  3;  Dotson  v.  Milliken,  27 
App.  Cas.  (D.  C.)  500,  209  U.  S.  237;  Jones  v.  Holladay,  2  App. 
Cas.  (D.  C.)  279;  Wiggins  v.  Wilson,  55  Fla.  346,  45  S.  1011; 
Indian  Trust  Co.  v.  Sandlin,  125  Ca.  222,  54  S.  E.  65;  Phinzy 
V.  Bush,  129  Ga.  479,  59  S.  E.  259;  Wood  v.  Broderson,  12  Idaho, 
190,  85  P.  490;  Mercy  v.  Whallon,  115  111.  App.  435;  Fox  v. 
Ryan,  240  111.  391,  88  N.  E.  974;  Scott  v.  Stewart,  115  111.  App, 
535 ;  Lemon  v.  Carter,  116  111.  App.  421 ;  Whalen  v.  G^ore,  116 
111.  App.  504;  Newman  v.  Lumley,  125  111.  App.  382;  Oldham 
V.  Howser,  125  111,  App,  543;  "H^a/6er  v.  Chambers,  128  111.  App. 
624;  PacA;er  v,  Sheppard,  127  111.  App.  598;  Nolan  v.  iJasi,  132 
111,  App.  634;  Lo7ig  v.  Bajid,  57  111.  App.  134;  Faher  y..Vaugh- 
an,  108  111.  App.  553;  Kilpatrick  v.  McLaughlin,  108  111.  App, 
463;  Jeffries  v.  Loving,  106  111.  App.  380;  Phillips  v.  Dow)- 
/jowTr,  103  111.  App,  50;  Monroe  v.  Snow,  131  111.  126,  23  N.  E. 
401 ;  Ward  v.  Lawrence,  70  111.  295 ;  Fox  v.  /Sfflrr,  106  111.  App. 
273 ;  Eanrahan  v.  Vlrich,  107  111.  App.  626 ;  Schmidt  v.  Keeler, 
63  111.  App.  487 ;  Ispherding  v.  Wo//,  36  Ind.  App.  250,  75  N. 
E,  598;  Prov.  Trust  Co.  v.  Darraugh,  168  Ind.  29,  78  N.  E. 
1030;  Barnett  v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  154,  927; 
Lockivood  V.  Rose,  125  Ind.  588,  25  N.  E.  710;  McFarland  v, 
Lillard,  2  Ind.  App.  160,  28  N.  E.  229;  Flynn  v.  Jordal,  124 
Iowa,  457,  100  N.  W,  326 ;  Grieh  v,  Koefier,  127  Iowa,  314,  106 
N.  W,  113;  Sherburne  Land  Co.  v.  Sexton,  130  Iowa,  85,  106 


358  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

N.  W.  378;  McDermott  v.  Mahoney   (Iowa  Sup.  ),  106  N.  "W. 
925,  115  N.  W.  32;  McGiiire  v.  Fnrber,  125  Iowa,  533,  101  N. 
W.  279 ;  Tracetj  v.  Forbes,  132  Iowa,  250,  109  N.  W.  772 ;  Clem- 
ents V.  Staplcton,  136  Iowa.  137,  113  N.  W.   546;  Rounds  v. 
Alee,  116  Iowa,  345,  89  N.  W.  1098;  Cassady  v.  Scaly,  69  Iowa, 
509,  29  N.  W.  432;  Bird  v.  rhinips.  115  Iowa,  703,  87  N.  W. 
414;  Long  v.  Thompson,  73  Kan.  76.  84  P.  552;  Morris  v.  Fran- 
cis, 75  Kan.  580,  89  P.  901 ;  Sandefur  v.  Hines,  69  Kan.  168,  76 
P.  444;   Coleman  v.    Meade    rKy.\  13  Bush.   358;   Guthrie  v. 
Bright,  26  Ky.  L.  R.  1021,  82  S.  "W.  985;  Jacob  v.  Buchanan, 
11  Ky.  L.  R.  (abst.)  861;  Curry  v.  Fei/er,  15  Ky.  T^.  R.  (abst.) 
494 ;  Smith  v.  Lawrence,  98  Me.  92,  56  A.  455 ;  Carnes  v.  Hoiv- 
ard,  180  Mass.  569,  63  N.  E.  122:  Bice  v.  Mayo,  107  Mass.  550; 
Holden  v.  ;S^ff?7.:5,  159  Mass.  503.' 34  N.  E.  1069;  Whitaker  v. 
Engle,  111  ^lieh.  205,  69  N.  W.  493;  Hubbard  v.  Leiter,  145 
Mich.  387,  108  N.  W.  735;  McDonald  v.  ;Sfm?f./i,  99  Minn.  42, 
108  N.  W.  291 ;  Beet  v.  Sherwood,  47  Minn.  347,  50  N.  W.  241, 
929;  Rothschild  v.  Burritt,  47  ]\Iinn.  28,  49  N.  W.  393;  Annabil 
V.  Traverse  Law  Co.   (Minn.  Sup.  '09),  121  N.  W.  233;  Huba- 
check  V.  HazaYd,  83  Minn.  437,  86  N.  W.  426;   Fairchild  v. 
Cunningham,  84  Minn.  521,  88  N.  W.  15;  Cidlen  v.  Be?Z,  43 
Minn.  226,  45  N.  W.  428:  Enochs  v.  Paxton,  87  Miss.  660,  40 
S.  14;  Johnson  v.  Sutton  (Miss.  Sup.  '09),  49  S.  970;  Huggins  v. 
Hearne,  74  Mo.  App.  86 ;  McCray  v.  P/os^,  118  Mo.  App.  672, 
94  S.  W.  998;  Morgan  v.  Keller,  194  Mo.  663.  92  S.  W.  75; 
Veatch  v.  Norman,  95  Mo.  App.  500.  69  S.  W.  472;  Sallee  v. 
McMurray,  113  Mo.  App.  253,  88  S.  W.  157;  Broum  v.  Smith, 
113  Mo.  App.  59,  87  S.  W.  556 ;  Butts  v.  i?«?)i/.  85  Mo.  App.  405; 
Finley  v.  Dyer,  79  Mo.  App.  604 ;  Bayden  v.  G!n7Zo.  26  Mo.  App. 
289 ;  Chipley  v.  Leuthe,  60  INIo.  App.  15 ;  Gelott  v.  Ridge,  117 
Mo.  533,  23  S.  W.  882 ;  Goodson  v.  Embleton,  106  Mo.  App.  77, 
80  S.  W.  22;  Harmon  v.  Enright,  107  Mo.  App.  560,  81  S.  W. 
1180;  Yodery.  White,  75  Mo.  App.  155;  Warren  v.  Oram,  71  Mo. 
App.  638;  Siemson  v.  Homan,  35  Neb.  892.  53  N.  W.   1012; 
Potvin  V.  Curran,  13  Neb.  302,  14  N.  W.  400;  Stewart  v.  Smith, 
50  Neb.  631,  70  N.  W.  235;  Tracey  v.  Dean,  77  Neb.  382,  109 
N.  W.  505;  Parker  v.  Estabrook,  68  N.  H.   349.  44  A.  484; 
Courtier  v.  Ly decker,  71  N.  J.  L.  511,  58  A.  1093;  Sibbald  v. 
Bethlehem  Iron  Co.,  83  N.  Y.  378 ;  Bloodgood  v.  Short,  98  N.  Y. 


COMMISSION   AND   COMPENSATION   OF    AGENTS.  359 

S.  775,  50  Misc.  286 ;  Moore  v.  Maguire,  98  N.  Y.  S.  752 ;  Shapiro 
V.  Nadler.  99  N.  Y.  S.  879,  51  Misc.  13;  O'Toole  v.  Tucker,  40 
N.  Y.  S.  695,  17  Misc.  554,  75  St.  101;  Martin  v.  Wermann, 
95  N.  Y.  S.  284,  107  App.  Div.  482 ;  Miller  v.  Barth,  71  N.  Y.  S. 
989,  35  Misc.  372,  74  N.  Y.  S.  869,  36  Misc.  810 ;  Allen  v.  James, 
7  Daly  (N.  Y.),  13;  Seidman  v.  Banner,  51  Misc.  (N.  Y.)  10, 
99  N.  Y.  S.  862 ;  Behrman  v.  Marcus,  102  N.  Y.  S.  467 ;  Lovell 
V.  Clench,  101  N.  Y.  S.  174,  115  App.  Div.  635 ;  McGill  v.  Gar- 
goula,  103  N.  Y.  S.  113 ;  Rosenstcin  v.  Bogel,  108  N.  Y.  S.  957, 
124  App.  Div.  527 ;  Willner  v.  Scale,  111  N.  Y.  S.  699,  127  App. 
Div.  180;  Van  Orden  v.  Morris,  18  Misc-.  (N.  Y.)  579,  42  N. 
Y.  S.  473;  Moses  v.  Helmke,  41  N.  Y.  S.  557,  18  Misc.  357; 
Duclos  V.  Cunningham,  102  N.  Y.  S.  678,  6  N.  E.  790;  Miller 
V.  Irish,  67  Barb.  (N.  Y.)  256;  Smith  v.  Smith,  1  Sweeney  (N. 
Y.),  552;  Krahner  v.  Heilman,  16  Daly  (N.  Y.),  132,  9  N.  Y. 
S.  633;  Burling  v.  Gunther,  12  Daly  (N.  Y.),  6;  Folinshee  v. 
Sawyer,  28  N.  Y.  S.  698,  8  Misc.  370;  Barnard  v.  Monnott,  1 
Abb.  Dec.  (N.  Y.)  108,  3  Keyes,  203,  33  How.  Pr.  440;  B(yyd 
V.  Imp.  Prop.  Holding  Co.,  120  N.  Y.  S.  850;  Yerder  v.  Seaton, 
83  N.  Y.  S.  159,  85  App.  Div.  196 ;  Dennis  v.  Charlick,  6  Hun 
(N.  Y.),  21;  Heinrich  v.  Kern,  4  Daly  (N.  Y.),  74;  Levy  v. 
Ruff,  22  N.  Y.  S.  744,  3  Misc.  147;  Steinhouse  v.  Klueppel,  81 
N.  Y.  S.  116,  80  App.  Div.  445;  Curtis  v.  Mott,  35  N.  Y.  S. 
983,  90  Hun,  439 ;  Folsom-  v.  Letvis,  36  N.  Y.  S.  270,  14  Misc. 
605;  Mullenhof  v.  Gensler,  15  N.  Y.  S.  673;  Raleigh,  R.  E. 
Trust  Co.,  v.  Adams.  145  N.  C.  161,  58  S.  E.  1008;  Ward  v. 
McQueen,  13  N.  D.  153.  100  N.  W.  253;  Heintz  v.  BoehTmr,  4 
Ohio  N.  P.  226,  6  Ohio  S.  &  C.  P.  Dec.  362 ;  Birch  v.  McNaught 
(Okla.  Sup.  '09),  101  P.  1049;  Yoder  v.  Randal,  16  Okla.  308, 
83  P.  537,  3  L.  R.  A.  n.s.  576 ;  Ball  v.  Dolan,  18  S.  D.  558,  101 
N.  W.  719;  Mattes  v.  Engef,  15  S.  D.  330,  89  N.  W.  651;  Howie 
V.  Batrud,  14  S.  D.  648,  86  N.  W.  747 ;  Ornyski  v.  Menger,  15 
Tex.  Civ.  App.  448,  39  S.  W.  388;  Smye  v.  Groesbeck  (Tex. 
Civ.  App.  '02),  73  S.  W.  972;  Brackenridge  v.  Claridge  (Tex. 
Civ.  App.  '97),  42  S.  W.  1005,  reversed  91  Tex.  127,  144  S.  W. 
819;  43  L.  R.  A.  593;  Hamherger  v.  Thomas  (Tex.  Civ.  App. 
'09),  118  S.  W.  770;  Baldwin  v.  Smith  (Tex.  Civ.  App.  '09), 
119  S.  W.  Ill;  Burnett  v.  Edling,  19  Tex.  Civ.  App.  711,  48 
S.  W.  775;  O'Brien  v.  GilUland,  4  Tex.  Civ.  App.  40,  23  S.  W. 


360  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

244;  Reynolds-McGmn7i€ss  Co.  v.  Green,  78  Vt.  28,  61  A.  556; 
Cooper  V.  Upton  (W.  Va.  Sup.  '09),  64  S.  E.  523;  Neehj  v. 
Lewis,  38  Wash.  20,  80  P.  175 ;  Nechj  v.  Schultz,  38  Wash.  699, 
80  P.  176 ;  Miiir  v.  Moeller,  46  Wash.  601,  90  P.  1042 ;  Barnes 
V.  German  Sav.,  etc.,  Soc,  21  Wash.  448,  58  P.  569;  English  v. 
Wm.  George  Realty  Co.  (Tex.  Civ.  App.  '09),  117  S.  W.  996; 
Little  V.  Fleischman  (Utah  Sup.  '09),  101  P.  984;  Frinck  v. 
Gilbert  (Wash.  Sup.  '09),  101  P.  770;  Burden  v.  Briquilet,  125 
Wis.  341,  104  N.  W.  83 ;  Arnold  v.  Nat.  Bk.  Waupaca,  126  Wis. 
362,  105  N.  W.  828,  3  L.  R.  A.  n.s.  580;  Oliver  v.  Katz,  131 
Wis.  409,  111  N.  W.  509;  McArfhur  v.  Slosson,  53  Wis.  41,  9 
N.  W.  784;  Frost  v.  Houx,  15  Wyo.  353,  89  P.  568;  McGavock 
V.  Woodlief,  20  Howard  (U.  S.),  221;  Brydes  v.  Clement,  14 
Manitoba,  588. 

If  the  broker  employed  to  find  a  purchaser  brings  to  the 
owner  a  person  who  is  able,  ready  and  willing  to  buy  on  the 
owner's  terms,  lie  is  entitled  to  compensation,  although  he  does 
not  make  or  negotiate  a  binding  contract  of  purchase.  Buck- 
ingham V.  Harris,  10  Colo.  455,  15  P.  817 ;  Monroe  v.  Snow, 
131  111.  126,  23  N.  E.  401;  Ward  v.  Laivrence,  79  111.  295; 
Goodmanson  v.  Rosenstein,  114  111.  App.  243 ;  Fox  v.  Starr, 
106  111.  273;  Lockwood  v.  Rose,  125  Ind.  588,  25  N.  E.  710; 
Burling  v.  Gunther,  12  Daly  (N.  Y.),  6;  Folinshee  v.  Sawyer, 
28  N.  Y.  S.  698,  8  Misc.  370 ;  Heintz  v.  Boehmer,  4  Ohio  N.  P. 
226,  6  Ohio  C.  &  C.  PI.  Dee.  362 ;  Mattes  v.  Engel,  15  S.  D.  330, 
89  N.  W.  651 ;  Barnes  v.  German,  etc.,  Sav.  Soc,  21  AVash.  448, 
58  P.  569;  Brydes  v.  Clement,  14  Manitoba,  588;  Marriott  v. 
Brennan,  14  Ont.  L.  K.  508,  10  Ont.  W.  R.  159;  Willard  v. 
Wright  (Mass.  Sup.  '09),  89  N.  E.  559;  Dean  v.  Williams  (Wash. 
Sup.  '10),  106  P.  130;  Beongher  v.  Clark  (Kan.  Sup.  '09),  106 
P.  39;  Simmons  v.  Oneth  (Mo.  App.  '10),  124  S.  W.  534;  Wat- 
ki7is  V.  Thomas  (Mo.  App.  '10\  124  S.  W.  1063;  Slayhack  v. 
Wetzel  (Me.  App.  '09),  123  S.  W.  982. 

A  broker  employed  to  sell  lands,  as  distinguished  from  a  bro- 
ker employed  merely  to  find  a  purchaser,  to  be  entitled  to  com- 
pensation, must  effect  a  sale  or  procure  from  his  customer  a 
binding  contract  therefor.  Ormshy  v.  Graham,  123  Iowa,  202, 
98  N.  W.  724. 

An  offer  to  buy  290,000  feet  of  land,  to  be  taken  from  a  par- 


COMMISSION    AND    COMPENSATION   OP   AGENTS.  361 

eel  containing  500,000  feet,  said  290,000  feet  to  be  divided 
as  to  front  and  back  lands  from  the  whole  parcel  as  nearly  equal 
as  possible,  where  accepted  by  the  owner  of  the  land,  entitles 
the  broker  employed  to  find  a  purchaser  therefor  to  his  com- 
mission, and  the  owner  will  not  be  heard  to  say  it  is  too  in- 
definite.   Monk  V.  Parker,  180  Mass.  246,  63  N.  E.  793. 

Where  the  owner  of  property  placed  it  with  a  real  estate 
broker  for  sale,  who  accordingly  advertised  it,  and  the  pur- 
chaser thus  derived  information  that  the  property  was  for  sale, 
and  afterwards  negotiated  directly  with  the  owner  and  pur- 
chased the  property,  the  broker  was  entitled  to  his  commis- 
sions. Kilbourn  v.  King,  6  D.  C.  310;  Tyler  v.  Parr,  52  ^lo. 
249;  Bell  v.  Kaiser,  50  Mo.  150;  Anderson  v.  Cox.  16  Neb.  10, 
20  N.  W.  10;  Kiernan  v.  Bloom,  86  N.  Y.  S.  899,  91  App.  Div. 
429;  Jackson  v.  Carrick,  25  Weekly  Notes  Cas.  (Pa.)  132.  There 
is  authority  to  support  the  contrary  doctrine,  Charlton  v. 
Wood,  11  Heisk.   (Tenn.)   19. 

Where  a  broker  employed  to  sell  land  negotiates  unsuccess- 
fully with  another  broker,  and  the  latter  subsequently  obtains 
authority  from  the  principal  under  which  he  effects  a  sale,  the 
fact  that  the  broker  after  the  sale  was  promised  by  the  pur- 
chaser an  interest  in  the  profits  of  the  land,  in  consideration 
that  he  should  look  after  it,  and  try  to  effect  a  sale  at  an  in- 
creased price,  did  not  constitute  him  a  purchaser  so  as  to  en- 
title the  first  broker  employed  to  the  commission,  Donville  v, 
Comstock,  110  :Mich.  693,  69  N.  W.  79. 

Plaintiff  was  employed  by  defendant  to  sell  certain  prem- 
ises, and  procured  a  purchaser  at  $7,000,  to  be  paid  by  the 
assumption  of  a  first  mortgage  for  $3,500,  $2,500  in  cash,  and 
the  giving  of  a  second  mortgage  for  $1,000,  with  interest  at 
five  per  cent. ;  this  offer  was  accepted  and  a  written  contract 
prepared,  which  provided  that  the  $1,000  should  be  evidenced 
by  a  demand  note;  the  purchaser  declined  to  perform  unless 
given  six  months  within  which  to  pay  the  latter  amount ;  the 
owner  refused  to  extend  the  credit  longer  than  sixty  days;  it 
was  held  that  under  his  agreement  the  purchaser  was  entitled 
to  a  reasonable  time  within  which  to  pay  such  sum,  and  as  his 
demand  for  six  months  was  reasonable,  plaintiff  was  entitled 


362  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

to  commissions  for  the  sale.  Wendle  v.  Palmer,  77  Conn.  12, 
58  A.  12. 

If  the  principal  enters  into  a  contract  with  the  purchaser 
furnished  by  the  broker,  the  principal  will  be  held  to  have 
favorably  determined  the  purchaser's  responsibility  and  the 
commission  is  due,  although  the  purchaser  proves  irresponsible. 
Stievel  v.  Lally,  89  Ark.  195,  115  S.  ^Y.  1134;  Wray  v.  Carpen- 
ier,  16  Colo.  271,  27  P.  248;  Wriqht  v.  Brown,  68  Mo.  App. 
577 ;  Brady  v.  Foster,  75  N.  Y.  S.  994,  72  App.  Div.  416.  Com- 
pare Butler  V.  Baker,  17  R.  I.  582,  23  A.  1019. 

As  a  slaughter  house  erected  on  the  lot  purchased  is  not 
shown  to  be  a  nuisance,  and  there  is  nothing  in  the  letter  or 
spirit  of  the  contract  to  prevent  the  use  of  the  lot  for  that 
purpose,  defendant  can  not  resist  plaintiff's  claim  for  commis- 
sions, because  the  lot  is  so  used.  Kavanaiigh  v.  Ballard.  21 
Ky.  L.  R.  1683,  56  S.  W.  159. 

Where.  W.  agrees,  for  a  valuable  consideration,  to  pay  to  a 
broker  a  certain  sum  in  case  either  W.  or  G.  should  ''sell"  the 
described  premises,  a  bargain  made  by  W.,  unaided  by  G.,  to 
sell  the  land,  and  a  conveyance  accordingly  by  himself  and  wife, 
was  a  sale  within  the  meaning  of  the  contract.  Goward  v.  Wa- 
ters, 98  Mass.  596. 

An  agent  for  the  sale  and  management  of  the  estates  of  ab- 
sent proprietors  was  held  to  be  entitled  to  ten  per  cent,  on  all 
collections  made  by  him  and  remitted,  and  to  a  per  diem  al- 
lowance for  the  days  spent  by  him  in  the  management  of  the 
estate.     West  N.  J.  Society  v.  Morris,  Peters  (U.  S.  C.  C),  59. 

Under  a  contract  by  which  defendant  agreed  to  pay  plaintiff 
a  specified  commission  if  he  (defendant)  succeeded  in  selling 
his  land  on  certain  terms  to  a  person  whom  plaintiff  had  brought 
to  him,  plaintiff  is  entitled  to  the  commission,  whether  the  sub- 
sequent sale  to  that  person  was  effected  through  plaintiff's  ef- 
forts, or  direct  by  defendant,  or  through  the  efforts  of  some 
third  person.     Gonge  v.  Hoyt,  127  Iowa,  340,  101  X.  W.  463. 

Under  a  contract  to  pay  plaintiff  a  certain  commission  on 
a  sale  of  defendant's  farm,  or  any  part  of  it,  at  a  certain  price 
accepted  by  defendant,  where  plaintiff  offered  the  farm  to  a 
party  who  subsequently  bought  it  through  another  agency, 
plaintiff  was  not  bound  to  actually  make  a  sale  to  entitle  him 


COMMISSION   .^ND"  COMPENSATION   OF   AGENTS.  363 

to  a  commission,  since  the  contract  merely  implied  an  employ- 
ment to  assist  in  making  a  sale.  Terry  v.  Reynolds,  111  Wis. 
122,  86  N.  W.  557. 

A  Frenchman  residing:  in  Iowa  wrote  to  his  neighbor,  also 
a  Frenchman  and  a  land  broker,  who  had  gone  on  a  visit  to 
France,  to  procure  him  a  purchaser  for  his  farm  at  $4,000,  for 
which  he  would  allow  him  $200  brokerage.  The  broker  was 
approached  a  year  later  by  a  Frenchman  in  New  York  who 
desired  to  purchase  a  farm.  The  broker  took  him  to  Iowa, 
showed  him  the  farm  in  question,  told  the  seller  to  be  reason- 
able in  his  terms,  and  afterAvards  remarked  to  a  witness  that 
he  had  fetched  the  seller  to  terms.  The  purchaser  took  the 
land  at  $4,000.  Held,  that  the  evidence  was  insufficient  to  show 
that  the  broker  w^as  the  agent  of  the  buyer,  and  not  of  the 
seller,  and  that  he  was  entitled  to  the  agreed  compensation  of 
$200.     Dubois  v.  Dubois,  54  Iowa,  216,  6  N.  W.  261. 

An  agreement  by  brokers  effecting  an  exchange  of  lands 
that  the  owner  of  one  piece  shall  pay  no  commissions  until  they 
have  placed  mortgages  on  the  other  piece,  is  merely  a  condi- 
tion, and  the  commission  is  one  on  the  exchange,  and  not  the 
result  of  the  distinct  transaction.  Parker  v.  Merrill,  173  Mass. 
391,  53  X.  E.  913. 

Where  a  broker,  having  but  a  limited  time  within  which 
to  effect  a  sale,  failed  to  do  so  within  that  time,  and  the  prin- 
cipal declined  to  be  further  bound ;  and  subsequently,  the  bro- 
ker sought  to  have  him  again  consent  to  make  the  sale,  and  to 
induce  him  to  do  so  agreed  to  charge  less  commissions  than 
those  contemplated,  and  thus  procured  the  seller  to  consum- 
mate a  sale,  the  commissions  of  the  broker  are  to  be  charged 
under  the  new  contract  and  not  that  originally  made.  Fhinzy 
v.  Bnsh,  129  Ga.  479,  59  S.  E.  259. 

A  broker  who  accomplishes  the  purposes  of  his  agency  in 
accordance  with  his  instructions  earns  his  compensation.  Har- 
vey V.  Hamilton,  155  111.  377,  40  N.  E.  592. 

Sec.  558.    When  commissions  are  not  earned  by  broker. 

Ordinarily  a  broker  is  not  entitled  to  commissions  for  per- 
forming services  which  by  the  local  custom  are  rendered  gra- 
tuitously.   Courey  v.  Hoover ,  10  La.  Ann.  437.    If  a  broker  em- 


364  AMERICAN   LAW   KEAI:   ESTATE   AGENCY. 

ployed  to  negotiate  a  loan  abandons  the  employment  he  is  not 
entitled  to  a  commission  ol  the  transaction  being  afterwards 
effected.  Everett  v.  Farrel,  11  Ind.  App.  185,  38  N.  E.  872; 
Bouschcr  v.  Larkens,  32  N.  Y.  S.  305,  84  Hun,  288;  Holleij  v. 
Toivnsend,  2  Hilt.   (N.  Y.)  34. 

An  agency  to  buy,  sell,  exchange  or  lease  property  is  revocable 
at  any  time  before  sale,  unless  coupled  with  an  interest  or 
given  for  a  valuable  consideration,  and  after  his  authority  has 
been  withdrawn  a  broker  is  not  entitled  to  compensation  for 
finding  a  purchaser.  Brown  v.  Pfau,  38  Cal.  550;  Young  v. 
Trainer,  158  111.  428,  42  N.  E.  139;  Wilson  v.  Difer,  12  Ind. 
App.  320,  39  N.  E.  163;  Kavanaugli  v.  Ballard,  21  Ky.  L.  R. 
1683,  56  S.  W.  159 ;  Cadigan  v.  Crahtree,  186  IMass.  7,  70  N.  E. 
1033,  179  Mass.  474,  61  N.  E.  37,  55  L.  R.  A.  77,  66  L.  R.  A.  982 ; 
West  V.  Dennis,  128  Mich.  11,  87  N.  W.  95;  Fairckild  v.  Cun- 
ningham, 84  ]\Iinn.  521,  88  N.  W.  15;  Kesterson  v.  Chauvrant 
(Mo.  App.  '02),  70  S.  W.  1091;  Green  v.  Wright,  36  Mo.  App. 
298;  Vincent  v.  Woodland  Oil  Co.,  165  Pa.  St.  402,  30  A.  991. 

"Where  an  agent's  authority  to  sell  lands  is  revoked,  and 
the  owner  in  good  faith  thereafter  sells  upon  less  favorable 
terms  to  one  who  had  declined  to  purchase  from  the  agent, 
such  agent  is  not  entitled  to  commissions.  Bailey  v.  Smith,  103 
Ala.  641,  15  S.  900;  Vphof  v.  Ulrich,  2  111.  App.  399;  Blodgett 
V.  Sioux  City,  etc.,  B.  Co.,  63  Iowa,  606,  19  N.  W.  799;  Gillett 
v.  Corum,  5  Kan.  608;  Stedman  v.  Richardson,  100  Ky.  79,  37 
S.  W.  259,  18  Ky.  L.  R.  567;  Beeler  v.  Cresswell,  3  Md.  196; 
Cadigan  v.  Crahtree,  179  Mass.  474,  61  N.  E.  37,  55  L.  R.  A.  77 ; 
Alden  v.  Earle,-  4  N.  Y.  S.  548.  56  Super.  Ct.  366;  Mallonee  v. 
Young,  119  N.  C.  549,  26  S.  E.  141;  Neal  v.  Lehman-,  11  Tex. 
Civ.  App.  461,  34  S.  W.  153;  Corse  v.  Kelly  (Kan.  Sup.  '09), 
101  P.  1016. 

A  broker  who  fails  to  procure  a  license  to  carry  on  his  busi- 
ness, in  most  of  the  localities  where  that  is  required  by  law, 
can  not  recover  commissions  for  acting  as  such.  Whitfield  v. 
Hiding,  50  111.  App.  179;  Eckert  v.  Collot,  46  111.  App.  361; 
Richardson  \.  Brix,  94  Iowa,  626;  63  N.  W.  325;  Young  v. 
Denning,  52  Kan.  629,  35  P.  207;  Buckley  \.  Tlumason,  50  Minn. 
195,  52  N.  W.  385;  Johnson  v.  Hulings,  103  Pa.  St.  498;  Steven- 
son V.  Emng,  87  Tenn.  46,  9  S.  W.  230;  Wicks  v.  Carlisle,  12 


COMMISSION   AND    COMPENSATION   OF    AGENTS.  365 

Okla.  337,  72  P.  377;  Smile  v.  Ryan  (Tenn.  Ch.  App.  '99),  53 
S.  W.  977;  Costello  v.  Goldbeck,  9  Phila.  (Pa.)  158. 

Where  a  sub-agent  conceals  from  the  principal  the  fact  that 
he  is  acting  for  the  agent,  the  latter  can  not  recover  commis- 
sions.   Mullen  V.  Boiren,  22  Ind.  App.  294,  53  N.  E.  790. 

If  a  broker  employed  to  sell  property,  buys  it  for  himself, 
and  does  this  without  the  consent  of  his  principal,  he  is  not 
entitled  to  commissions.  Finnerty  v.  Fritz,  5  Colo.  174;  Ham- 
mond V.  Bookwalter,  12  Ind.  App.  177,  39  N.  E.  872;  Jansen 
V.  Williams,  36  Neb.  869,  55  N.  W.  279,  20  L.  R.  A.  207 ;  Powers 
V.  Black,  159  Pa.  St.  153,  28  A.  133 ;  Miller  v.  Holland,  1  Weekly 
Notes  Cas.  (Pa.)  36;  Ryan  v.  Kahler  (Tex.  Civ.  App.  '98),  46 
S.  W.  71. 

All  agreements  between  a  real  estate  agent  or  broker  and 
a  proposed  purchaser  touching  the  subject  matter  of  his  em- 
ployment which  are  not  disclosed  to  his  principal  should  be 
scrutinized  closely,  and  if  not  found  compatible  with  entire  in- 
tegrity and  good  faith  toward  his  principal,  they  will  defeat  the 
agent's  claim  for  commissions  from  his  principal.  Hohart  v. 
Sherburne,  66  ]\tinn.  171.  68  N.  W.  841. 

One  employing  a  broker  to  sell  property,  without  giving  to 
him  the  exclusive  right  to  sell,  may  negotiate  a  sale  himself, 
and,  if  he  does  so  without  the  agency  of  the  broker,  and  be- 
fore the  latter  has  procured  a  purchaser,  he  is  not  liable  to 
the  broker  for  commissions,  although  the  broker  produced  a 
purchaser  after  a  sale  by  the  owner.  Hill  v.  Jejf,  55  Ark.  574, 
18  S.  W.  1047;  Waterman  v.  Boltinghouse,  82  Cal.  659,  23  P. 
195 ;  Dolan  v.  Scanlan,  57  Cal.  261 ;  Doonan  v.  Ives,  73  Ga.  295 ; 
Curtis  V.  Wa(j7ier,  98  111.  App.  345;  Stewart  v.  Murray,  92  Ind. 
543;  Buck  v.  Hogeboom.,  125  Iowa,  526,  90  N.  W.  635;  McClave 
V.  Paine,  49  N.  Y.  561 ;  Brown  v.  Snyder,  68  N.  Y.  S.  224,  57 
App.  Div.  413;  Chilton  v.  Butler,  1  E.  D.  Smith  (N.  Y.),  150-, 
Scherer  v.  Colivell,  87  N.  Y.  S.  490,  43  Misc.  390;  Harris  v. 
Rogers,  15  N.  Y.  St.  396 ;  Evans  v.  Gay,  38  Tex.  Civ.  App.  442, 
74  S.  W.  575. 

Where  a  broker  is  instructed  by  his  principal  to  ascertain 
the  actual  rentals  of  a  property  sought  in  exchange,  and  the 
agent  procures  an  erroneous  statement  thereof,  although  believ- 
ing it  to  be  true,  where  the  principal  relies  on  it  and  he  con- 


366  AMERICAN   LiW   REAL   ESTATE   AGENCY. 

tracts  to  exchange  the  property,  but  rescinds  the  contract  on 
learning  the  facts,  the  broker  is  not  entitled  to  compensation. 
Marcus  v.  Bloomingdale,  71  N.  Y.  S.  374,  63  App.  Div.  227. 

A  broker  who  is  nnsuccessful  in  effecting  a  transaction  sub- 
ject to  the  approval  of  his  principal,  is  not  entitled  to  a  com- 
mission upon  a  sale  subsequently  made  by  another  broker.  Goin 
V.  Hess,  102  Iowa,  140,  71  N.  W.  218;  Latshaw  v.  Moore,  53 
Kan.  234,  36  P.  342;  ^Yalion  v.  .V.  0..  etc.,  B.  Co.,  23  La.  Ann. 
398;  Ward  v.  Fletcher,  124  Mass.  224;  Donville  v.  Comstock, 
110  Mich.  693,  69  N.  W.  79;  Thuner  v.  Kanter,  102  Mich.  59, 
60  N.  W.  299;  Wilson  v.  Alexander  (Tex.  Sup,  '92),  18  S.  W. 
1057. 

Where  a  broker  found  a  customer  to  whom  the  owner  sold 
the  property  after  the  termination  of  the  employment,  the  bro- 
ker was  not  entitled  to  a  commission,  where  the  broker  found 
the  customer  previous  to  his  employment,  and  the  negotiations 
for  the  sale  were  conducted  without  his  aid.  Cushman  v.  Gori, 
1  Hilt.  (N.  Y.)  356. 

Where  a  broker  is,  by  agreement,  to  receive  commissions  for 
procuring  a  purchaser  for  land  only  on  condition  that  a  sale  i« 
made  to  a  certain  purchaser,  he  can  not  recover  if  a  sale  to 
such  purchaser  is  not  consummated,  owing  to  the  fault  of  either 
of  the  parties.  Lyle  v.  Univ.  Land,  etc.,  Co.  (Tex.  Civ.  App. 
'95),  30  S.  W.  723. 

Where  a  vendor  employs  a  broker  to  effect  a  sale  of  land, 
and,  relying  wholly  on  the  broker  does  not  exercise  his  own 
judgment  as  to  the  responsibility  of  a  purchaser  found  and 
presented  by  the  broker,  but  signs  a  contract  of  sale,  which  the 
purchaser  is  unable  to  carry  out,  the  broker  is  not  entitled  to 
compensation.  Butler  v.  Baker,  17  R.  I.  582,  23  A.  1019.  Com- 
pare Wray  v.  Carpenter,  16  Colo.  271,  27  P.  248;  Wright  v. 
Brown,  68  Mo.  App.  577;  Brady  v.  Foster,  75  N.  Y.  S.  994,  72 
App.  Div.  416. 

If  a  broker  releases  his  right  to  a  commission  in  considera- 
tion that  the  principal  would  give  him  further  business,  the 
principal's  failure  to  keeo  his  promise  does  not  entitle  the  bro- 
ker to  recover  the  original  renounced  commission;  his  remedy, 
if  any,  is  an  action  on  the  promise.  Lindt  v.  Schlitz  Brewing 
Co.,  113  Iowa,  200,  84  N.  W.  1059.     See  also  Sec.  1073. 


COMMISSION    AND   COMPENSATION   OF   AGENTS.  367 

A  real  estate  brolcer  's  contract  for  commissions  for  the  sale 
of  land  which  provides  that  "when  said  land  is  sold"  he  shall 
have  a  certain  per  cent,  of  the  price  out  of  the  first  money  col- 
lected, but  which  fails  to  give  him  exclusive  authority  to  sell, 
does  not  entitle  him  to  such  commission  on  a  sale  made  by  the 
owner  himself.    Tmceij  v.  Ahneit,  122  Iowa,  306,  98  N.  W.  121. 

Defendant  agreed  to  pay  plaintiff  certain  compensation  to 
sell  his  farm  for  $20,000,  to  be  paid  as  follows:  First  mort- 
gage $5,000,  second  mortgage  $2,500,  the  balance  to  defendant 
in  cash;  the  mortgages  were  made  to  secure  bonds  of  defend- 
ant. Held,  that  plaintiff  did  not  earn  the  compensation  by  the 
tender  of  a  contract  Avhereby  the  purchaser  agreed  to  pay  that 
portion  of  the  price  represented  by  the  mortgages,  "by  assum- 
ing" these  mortgages,  in  the  absence  of  evidence  that  the  mort- 
gages were  not  due  and  could  not  be  paid.  Schultz  v.  Griffin, 
24  N.  E.  480,  121  N.  Y.  294. 

"Where  one  authorized  to  sell  certain  property  within  a  speci- 
fied time,  he  to  have  a  certain  amount  for  procuring  a  pur- 
chaser or  making  a  sale,  notifies  the  owner  within  the  time 
that  he  has  secured  a  proposition  on  certain  terms,  at  the  price 
fixed,  and  the  proposition  is  not  accepted,  he  can  not  recover  the 
agreed  compensation,  the  customer  being  one  with  whom  the 
o-\\Tiers  had  themselves  been  in  treaty  for  the  property  for  sev- 
eral months  prior  thereto,  and  who  had  that  day  made  them 
an  offer  of  the  same  amount.  Hartley  v.  Anderson,  150  Pa. 
St.  391,  24  A.  675. 

Plaintiff  claimed  that  defendant  authorized  him  to  sell  a  ten- 
acre  tract  for  $17,000,  and  that  he  obtained  a  purchaser  at 
that  price.  In  an  action  for  the  commissions,  plaintiff's  al- 
leged purchaser  testified  that  plaintiff  offered  him  the  land  at 
that  price;  that  he  told  plaintiff  that  he  would  take  it,  and  to 
get  an  option  on  the  property;  when  plaintiff  returned  and 
told  him  that  defendant  would  sell  only  about  nine  acres,  he 
told  plaintiff  to  get  an  option  on  the  best  terms  he  could  and 
he  would  consider  it;  an  option  was  obtained  on  the  nine  acres 
but  never  accepted.  Defendant's  reason  for  not  selling  over 
nine  acres  was,  that  he  wanted  the  balance  for  a  street.  Wit- 
ness testified  that  he  thought  defendant  intended  putting  a 
street  through,  and  that  he  wanted  the  option  to  see  if  de- 


368  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

fendant  would  insist  on  it.  Witness  testified  that  he  intended 
to  take  the  hind  if  he  got  the  Avhole  ten  acres  for  the  price 
named.  Held,  that  a  verdict  should  have  been  directed  for; 
defendant,  on  the  ground  that  plaintiff  did  not  obtain  a  pur- 
chaser.   Hamwn  v.  Fisher,  82  Mich.  208,  46  N.  W.  225. 

A  provision  in  a  contract  employing  a  broker  to  procure  a 
purchaser  before  a  certain  date,  of  real  estate,  stipulated  that 
if  the  premises  were  sold  after  such  date  on  information  from 
him  he  should  receive  commissions.  The  premises  were  sold 
subsequent  to  such  date  through  other  brokers  for  a  less 
price.  The  purchaser  learned  that  the  property  was  for  sale 
from  the  owner's  attorney  advertising  the  same.  There  was 
nothing  to  show  that  the  broker  started  the  negotiations  be- 
tween the  purchaser  and  owner,  nor  was  there  anything  to 
show  bad  faith  on  the  part  of  the  owner.  Held,  that  the  bro- 
ker was  not  entitled  to  commissions.  Shipman  v.  Wilkeson,  112 
N..Y.  S.  895. 

A  real  estate  broker  who  expressly  contracts  to  sell  and  con- 
vey for  cash  is  not  entitled  to  commissions  by  merely  securing 
a  competent  person  for  the  purchase  of  the  land.  Burnett  v. 
Botis,  143  111.  App.  160,  affirmed  86  N.  E.  258. 

The  mere  fact  that  real  estate  was  sold  to  the  person  to  whom 
a  broker  employed  to  procure  a  purchaser  had  five  or  six  months 
previous  to  the  sale  given  the  information,  Avithout  informing 
the  owner  or  doing  anything  further  to  effect  a  sale,  was  not 
sufficient  to  entitle  the  broker  to  commissions.  Waters  v.  Ra- 
falsky,  119  N.  Y.  S.  271. 

Where  a  real  estate  broker,  who  had  been  authorized  to  sell 
the  timber  of  a  tract  of  land  merely  informed  the  purchaser 
who  had  been  negotiating  with  the  owners  for  some  time  in 
regard  to  purchasing  the  land,  that  he  had  the  land  for  sale, 
but  did  nothing  further,  and  knew  nothing  of  the  subsequent 
negotiation  which  led  up  to  the  sale,  which  was  not  made  un- 
til the  vendor  agreed  that  a  mill  and  the  down  timber  would 
be  included,  and  also  agreed  to  the  purchaser's  terms  as  to 
time  of  payment,  the  broker  was  not  the  efficient  agent  in  or 
the  procuring  canse  of  the  contract  so  as  to  entitle  him  to  com- 
missions.   GofT  V.  Hurst  (Ky.  Ct.  App.  '09),  122  S.  W.  148. 

Broker  held  not  entitled  to  commissions  for  effecting  par- 


COMMISSION    AND    COMPENSATION   OF   AGENTS.  369 

ties  to   consider  an  exchange,   where  they  refused  to  sign  the 
contract  therefor.     Reynolds  v.  Toch,  121  N.  Y.  S.  85. 

Defendant  authorized  plaintiff  to  sell  certain  property  for 
her  at  $40,000.  The  best  offer  plaintiff  obtained  was  $38,000, 
and  the  property  was  subsequently  sold  by  a  third  person  for 
$39,000.  Held,  that  plaintiff  did  not  produce  a  party  Avilling, 
ready  and  able  to  purchase  on  defendant's  terras,  and  could 
not  therefore  claim  commissions.  Senior  v.  Fitzgerald,  119  N. 
Y.  S.  745. 


PART  V. 

PLEADINGS,  PRACTICE  AND  JUDI- 
CIAL CONSTRUCTIONS  AND 
INTERPRETATIONS. 

371 


CHAPTEE  I. 


SECTION. 

564. 

Correspondence. 

559. 

Doctrine  of  public  policy. 

565. 

Advancements. 

560. 

Acquiescence  and  waiver  and 

566. 

The  borrower. 

effect       upon      brokers' 

567. 

Acceptances. 

rights. 

568. 

Conformity. 

661. 

Advertising    and    advertise- 

569. 

Costs. 

ments. 

570. 

Conditions  precedent  to  right 

562. 

Accord  and   satisfaction. 

to  commissions. 

563. 

Breach  of  contract. 

Sec.  559.    Doctrine  of  public  policy. 

Plaintiff  entered  into  a  contract  with  defendants  whereby 
he  was  to  have  a  certain  commission  for  furnishing  a  purchaser 
for  their  mine;  he  furnished  a  purchaser,  a  sale  was  made, 
and  defendant  refused  to  pay  the  commission.  Held,  that  the 
fact  that  plaintiff  was  employed  by  the  purchasers  to  manage 
one  of  their  mines,  did  not  make  him  their  agent  in  regard* to 
the  purchase,  and  he  was  not  acting  as  agent  for  both  parties 
to  the  contract  so  as  to  render  his  transaction  void  as  against 
public  policy.  Owen  v.  Matthews,  123  Mo.  App.  463,  100  S. 
W.  492.     See  also  Sec.  454. 

The  employment  of  the  same  broker  by  both  parties,  merely 
to  bring  them  together,  is  not  against  public  policy,  and  he  may 
recover  commissions  from  each.  McLure  v.  Luke,  154  Fed.  647. 
See  also  Sees.  475,  578. 

An  agreement  between  a  broker  employed  to  procure  a  pur- 
chaser of  real  estate  and  a  prospective  purchaser  binding  the 
broker  not  to  procure  any  other  customer,  and  binding  the  pur- 
chaser, in  consideration  thereof,  to  pay,  if  he  purchases,  to  the 
broker,  a  specified  commission,  is  contrary  to  public  policy, 
and  is  not  enforceable  on  the  purchaser  acquiring  the  premises. 
Rahinoivitz  v.  Pizer,  108  N.  Y.  S.  994. 

Although  one  of  the  principals  may  have  known  of  the  double 
agency  of  the  broker,   and  the  transaction  was  advantageous 

373 


374  AMERICAN   LAW   KEAL   ESTATE   AGENCY. 

to  said  principaj,  the  act  is  against  public  policy  and  bars  re- 
covery of  commissions.  Comvell  v.  Smith,  142  Pa.  St.  25,  21 
A.  793,  12  L.  R.  A.  395;  Chapman  v.  Currie,  51  Mo.  App.  40; 
Lightcap  v.  Nicolai,  34  Pa.  Super.  Ct.  189;  Sumner  v.  Dires- 
Tciawicz  (Conn.  Sup.  '09),  74  A.  906.  See  also  Sec.  706a.  A 
contract  of  the  purchaser  Math  the  seller's  broker  to  convey  to 
the  latter  a  part  of  the  land  bought,  is  unenforceable  as  against 
public  policy.    Smith  v.  Townsend,  109  Mass.  500. 

A  broker  who  is  employed  to  exercise  his  abilities  on  behalf 
of  his  principal  can  not,  without  his  principal's  knowledge, 
agree  to  represent  the  other  party  to  the  transaction;  such 
agreement  being  contrary'  to  public  policy  and  unenforceable, 
though  the  original  principal  was  not  injured;  the  agent  in- 
tended no  wrong,  and  the  other  party  acted  in  good  faith.  Bass 
v.  Tolhert  (Tex.  Civ.  App.  '08),  112* S.  W.  1077. 

Where  an  agent  for  the  sale  of  land  agrees  with  another, 
that  the  latter  shall  purchase  it  for  their  joint  benefit,  and  con- 
ceals such  sale  from  his  principal,  the  contract  by  the  purchaser 
to  account  to  the  agent  for  the  profits  is  violative  of  law,  con- 
trary to  public  policy,  and  unlawful,  under  Civil  Code,  Section 
1067,  declaring  unlawful  that  which  is  contrary  to  law,  public 
policy,  or  good  morals.  Butler  v.  Agnew,  9  Cal.  App.  327,  99 
P.  395. 

A  broker  employed  to  procure  a  purchaser  of  real  estate 
for  a  specified  sum,  on  specified  terms,  for  an  agreed  commis- 
sion, interested  a  third  person  in  the  premises.  The  third  per- 
son requested  the  broker  to  do  nothing  further,  but  to  permit 
the  third  person  to  deal  directly  with  the  owner.  The  third 
person  promised  to  pay  the  broker  a  commission  if  he  pur- 
chased. The  said  third  person  subsequently  purchased  the  prem- 
ises from  the  OAvner.  Held,  that  the  broker  was  entitled  to  re- 
cover from  the  third  person  the  agreed  commission,  for  the  con- 
tract did  not  rest  on  an  immoral  consideration,  though  no  notice 
thereof  was  given  to  the  owner.  Siegel  v.  Rosenzwfiig,  114  N.  Y. 
S.  179,  129  App.  Div.  547. 

Any  money  received  by  a  broker  employed  to  sell  land  from 
a  purchaser  l)elongs  to  the  principal,  since  an  agent  will  not 
be  permitted  to  derive  profit  from  the  subject  matter  beyond 
his  lawful  compensation.  Metschan  v.  Swensson  (Or.  Sup.  '09), 
99  P.  277. 


PLEADINGS,  PRACTICE,  ETC.  375 

Where  a  real  estate  owner  fixed  his  own  price  on  the  prop- 
erty and  employed  a  broker  to  secure  an  acceptance  of  his  prop- 
osition merely,  not  the  best  price  he  could  obtain,  he  can  not 
require  the  broker  to  account  for  money  received  by  him  from 
the  broker  for  the  other  party  on  a  division  of  the  latter 's  com- 
missions.   Law  V.  Ware,  238  111.  360,  87  N.  E.  308. 

Under  an  ordinary  agency  for  the  sale  of  land  for  the  high- 
est price  possible,  it  is  contrary  to  public  policy  for  an  agent, 
without  the  consent  of  the  principal,  to  accept  compensation 
from  the  purchaser.  Aikin  v,  Poffenberger  (Tex,  Civ.  App. 
'09),  116  S.  W.  615. 

Where  one  engages  to  negotiate  for  the  purchase  of  land, 
and  is  informed  by  the  principal  that  he  desires  to  purchase 
two  adjoining  tracts  to  make  one  property  of  them,  the  agent 
can  not  negotiate  a  purchase  on  his  own  account  of  one  of  the 
tracts  and  hold  it  against  the  interest  of  his  principal,  it  being 
sufficient  that  he  undertook  the  negotiations  and  held  a  situa- 
tion of  trust  with  reference  to  procuring  the  land.  Rogers  v. 
Genung  (N.  J.  Err.  &  App.  '09),  74  A.  473. 

Sec.  560.    Acquiescence  and  waiver,  and  effect  upon  broker's 
rights. 

Where  the  vendor  and  a  proposed  ■  purchaser  disagree  as  to 
the  terms  of  sale,  and  the  broker,  who  is  present,  acquiesces  in 
the  inability  of  the  parties  to  complete  the  contract,  and  the 
owner  after\\'ard  places  the  property  in  the  hands  of  another 
agent,  who  sells  it  on  practically  the  same  terms  to  the  pur- 
chaser secured  by  the  first  agent,  unless  fraud  or  bad  faith  be 
shown,  the  first  broker  is  not  entitled  to  compensation.  Girar- 
dieu  V.  Gibson,  122  Ga.  3]  3,  50  S.  E.  91. 

Where  a  real  estate  broker  made  a  contract  for  the  sale  of 
land  which  contained  an  agreement  that  possession  should  be 
given  in  ninety  days,  and  this  agreement  was  beyond  his  au- 
thority, but  his  principal  conveyed  the  land  to  the  vendees, 
they  accepting  an  allowance  on  account  of  the  delay  beyond 
ninety  days  in  giving  possession.  Held,  that  by  making  settle- 
ment with  the  principal,  the  vendees  lost  their  right  of  action 
against  the  brokers  because  of  the  breach  of  an  unauthorized 
agreement.  Hopkins  v.  Everly,  150  Pa.  St.  117,  24  A.  624,  30 
Weekly  N.  Cases  393. 


37  0  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Arj  owner  employed  a  broker  to  procure  a  purchaser  and 
agreed  to  pay  him  a  commission  on  the  purchaser  paying  more 
than  a  specified  sum;  a  purchaser  could  not  be  induced  to  pay 
more  than  that  sum;  the  owner,  with  the  knowledge  of  the 
broker,  made  the  sale  at  the  highest  price  obtainable;  there 
was  no  secret  dealing  between  the  owner  and  the  purchaser, 
and  the  broker  did  not  object  to  the  sale.  Held,  that  the  broker 
was  not  entitled  to  a  commission,  on  the  theory  that  there  was 
a  waiver  on  the  part  of  the  owner  of  the  stipulation  as  to  price. 
Ball  V.  Dolan  (S.  D.  Sup.  'OS) ,  114  N.  W.  998.    See  also  Sec.  482. 

Where  j\[.,  who  was  to  receive  a  commission  for  a  sale  of 
B.'s  land,  turned  over  the  sale  of  the  land  to  L.,  agreeing  that 
L.  should  have  the  commissions  therefor,  to  which  B.  consented 
before  a  sale  was  made,  L.,  on  selliug  the  land,  was  not  entitled 
to  the  commissions  as  the  assignee  of  jM.,  but  because  he,  with 
the  knowledge  and  consent  of  B.,  sold  the  land  after  M.  had 
waived  his  right  to  do  so.  Mimson  v.  Mahon,  135  Iowa,  335, 
112  N.  \V.  775. 

Where  a  written  contract  employing  plaintiff  as  broker  to 
sell  defendant's  land  provided  for  a  certain  cash  payment  by 
any  purchaser  that  might  be  secured  and  fixed  the  price  at 
which  defendant  would  sell,  refusal  by  defendant  to  accept 
an  offer  to  buy  at  that  price  was  a  waiver  of  any  right  which 
defendant  might  otherwise  have  had  to  require  a  prospective 
purchaser  to  make  a  tender  in  cash  of  the  down  payment.  Mc- 
Dermott  v.  MeJioneu  flowa  Sup.),  106  N.  W.  925,  115  N.  W.  32, 
139  Iowa,  292 ;  Moore  v.  Boehm,  91  N.  Y.  S.  125,  45  Misc.  622. 

Where  a  broker  is  authorized  to  procure  a  purchaser  of  land 
within  a  certain  time,  but  the  owner  waives  the  performance 
of  the  contract  within  the  time  agreed  and  accepts  the  services 
of  the  broker  and  treats  the  contract  as  in  force^  the  broker 
will  be  entitled  to  compensation  when  he  procures  a  purchaser. 
Ice  V.  Maxwell,  61  W.  Va.  9,  55  S.  E.  899. 

K.  employed  land  brokers  to  procure  a  purchaser  for  his  land ; 
a  condition  of  the  employment  was  that  if  he  sold  the  land 
without  the  intervention  or  assistance  of  the  brokers  they  would 
not  be  entitled  to  commissions;  M.  sold  independently  of  the 
brokers,  although  before  negotiations  were  completed  the  bro- 
kers furnished  a  purchaser.    It  was  held  that  they    .ad,  by  the 


PI-ELIDINGS,    PKACTICE,   ETC.  377 

contract,  waived  their  rights,  and  were  not  entitled  to  a  com- 
mission.   Robinson  v.  Kindley,  36  Kan.  ]57,  12  Pac.  587. 

Where  a  landlord  accepted  the  waiver  of  a  tenant's  privi- 
lege of  renewal,  pi'ocured  by  his  agent  from  the  tenant,  and 
acted  upon  the  same,  he  was  estopped  to  deny  the  agent's  au- 
thority in  the  premises.  Madison  Ave.  v,  Osgood,  18  N.  Y.  S. 
126. 

Where  a  broker  was  told  by  the  principal  that  he  must  look 
to  the  intending  purchaser  for  his  compensation,  he  can  not 
recover  his  commissions  from  the  principal.  King  v.  Benson, 
22  Mont.  256,  56  P.  280.     Compare  Sec.  19. 

Under  an  agreement  to  pay  a  broker  a  commission  for  pro- 
curing a  purchaser  within  a  specified  time,  to  earn  the  com- 
mission he  must  produce  within  that  time  a,  customer  ready, 
able  and  willing  to  purchase  on  tlie  stipulated  terms;  but  the 
commission  is  earned  if  the  customer  is  willing  to  purchase  on 
different  terms,  and  the  variance  is  waived  by  the  principal, 
or  if  a  suitable  customer  is  produced,  but  not  within  the  time 
limited,  owing  to  a  delay  caused  by  the  principal,  there  being 
no  implied  promise  to  pay  a  commission  if,  at  a  time  subse- 
quent to  the  time  limit,  the  property  is  sold  to  one  introduced 
by  the  broker.    Brown  v.  Mason  (Cal.  Sup.  '09),  99  P.  867. 

Where  a  broker  employed  to  procure  g  purchaser  attempted, 
after  the  expiration  of  the  time  fixed  for  performance,  to  find 
a  purchaser,  and  the  owner,  knowing  thereof,  made  no  objec- 
tion, but  encouraged  him  to  proceed,  and  a  purchaser  was  pro- 
cured, the  owner  waived  the  time  limit  and  the  broker  was 
entitled  to  his  commissions.  Stiewel  v.  Lolly,  89  Ark.  195,  115 
S.  W.  1134.    See  also  Sec.  42. 

Where  a  principal  knows  that  his  agent  is  representing  both 
parties,  it  is  not  necessary  to  disclose  such  fact  to  the  prin- 
cipal to  entitle  him  to  his  commissions.  Arthur  v.  Porter  (Tex. 
Civ.  App.   '09),  116  S.  ^Y.  127. 

Where  a  contract  declared  on  and  exhibited  with  the  com- 
plaint, in  an  action  by  a  broker  for  commissions,  did  not  con- 
tain a  time  limit  for  performance,  but  referred  to  a  power  of 
attorney  executed  by  the  owner  to  the  broker  which  contained 
a  time  limit,  and  the  owner  admitted  the  execution  of  the  con- 
tract, but  alleged  that  it  was  not  in  force  at  the  time  of  the 


378  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

sale,  the  question  whether  the  contract  was  in  force  at  that  time 
was  in  i&sue,  and  under  it  the  broker  might  prove  a  waiver  by 
the  owner  of  the  time  limit  in  the  power  of  attorney,  Stieivel 
V.  Lalhj,  89  Ark.  195,  115  S.  W.  1134. 

A  contract  provided  that  certain  land  should  be  left  with 
plaintiff  for  sale  for  two  weeks,  and  until  written  notice  of 
withdraw^al.  The  broker  failed  to  sell  the  land  within  the  two 
weeks,  and  verbally  acquiesced  with  the  owner  that  his  time  to 
make  a  sale  had  expired,  and  stated  that  there  was  no  use  in 
destroying  the  contract,  which  defendant  wanted  to  do,  and 
neither  party  acted  further  thereunder.  Held,  that  the  broker 
had  waived  written  notice  of  withdrawal,  thereby  terminating 
the  contract  at  the  expiration  of  the  said  two  weeks.  Bird  v.^ 
Wehhcr  (Okla.  Sup.   '09),  101  P.  1052. 

The  right  to  recover  for  services  in  procuring  purchasers 
for  lands  was  not  waived  by  the  fact  that  after  plaintiffs  found 
that  defendants  did  not  own  or  control  the  land,  they  demanded 
a  return  of  the  inoney  advanced  by  the  purchasers.  Peavey  v. 
Greer  (Minn.  Sup.   '09),  121  N.  W.  875. 

Where  a  broker  performed  services  towards  leasing  prop- 
erty, but  before  he  had  leased  it,  he  told  the  owner  that  he 
would  charge  him  nothing  for  his  services,  he  was  entitled  to 
no  compensation,  either  for  subsecjuent  or  the  prior  services, 
whether  the  prior  services  were  rendered  without  a  contract 
therefor,  or  under  the  contract  to  effect  the  lease,  in  which 
latter  case  no  commission  would  be  earned  till  the  lease  was 
effected.     Strickland  v.  Fairfax   (Ya.  Sup.   '09),  65  S.  E.  477. 

The  commissions  of  a  broker  who  acquiesced  in  the  reduc- 
tion of  the  price  from  the  original  terms  is  based  on  the  ac- 
tual price  received.    Baucrsmith  v.  Min.,  etc.,  Co.,  .146  Fed.  95. 

A  broker  had  attempted  to  exchange  defendants'  property, 
and  had  announced  that  he  expected  two  and  one-half  per  cent. , 
commission.  Less  than  a  week  afterward,  the  deal  having  fallen 
through,  the  broker  wrote  to  defendants:  "Now,  I  have  a  trade 
for  you  and  am  willing  to  give  you  all  there  is  in  it,"  and  stated : 
"I  will  give  you  his  place  clear  and  $2,000  cash  for  your  place 
clear.  *  *  *  I  would  want  possession  of  your  place  this 
spring,  and  you  could  have  possession  of  the  other."  The  place 
referred  to  belonged  to  the  broker's  brother  in  another  State, 


PLEADINGS,    PRACTICE,    ETC.  379 

who  wished  to  move  to  the  residence  of  the  broker,  and  the 
broker  had  no  interest  in  the  land,  and  nothing  to  give  in  the 
transaction  other  than  his  commissions.  In  a  subsequent  letter 
the  broker  said:  "I  am  willing  to  give  you  all  there  is  in  it,  as 
we  would  rather  have  our  holdings  here,"  and  "should  I  get 
the  place  I  would  prefer  it  not  rented  until  my  brother  comes 
and  decides  what  he  wants  to  do. ' '  Held,  that  the  letters  showed 
that  the  broker  was  not  acting  for  defendants  but  was  either 
acting  for  himself  or  for  his  brother  and  proposed  to  waive  his 
commissions  if  the  exchange  were  consummated.  Big  Four  Realty 
Co.  V.  Clark  (Mo.  App.  '09),  123  S.  W.  95. 

Sec.  561.    Advertising  and  advertisements. 

In  a  contract  to  pay  for  the  services  of  a  real  estate  broker 
in  "showing  and  advertising''  land,  the  terra  "advertising" 
must  be  construed  as  meaning  the  publication  of  a  notice  in 
a  newspaper;  or  otherwise,  of  the  fact  that  the  land  is  for  sale. 
Darst  V.  Doom,  38  111.  App.  397. 

An  advertisement  put  upon  land  as  for  sale  by  an  agent  is 
insufficient  to  imply  power  in  such  agent  to  make  a  sale  thereof, 
when  the  owner  denies  conferring  such  power.  Mortimer  v.  Corn- 
well,  1  Hoffm.  (N.  Y.)  Ch.  351.  The  expenses  incurred  by  a 
broker  in  advertising  and  selling  a  client's  land,  are  not  elements 
of  damages,  in  an  action  to  recover  commissions  alleged  to  have 
been  lost  by  his  client's  refusal  to  convey  to  the  purchasers 
whom  the  broker  had  obtained.  Burnett  v.  Edling,  19  Tex. 
Civ.  App.  711,  48  S.  W.  775.  See  also  Sec.  309.  A  broker's 
advertisement  which  brought  a  purchaser,  who  bought  from 
the  principal,  entitled  the  broker  to  his  commissions.  Kilhourn 
V.  King,  6  D.  C.  310;  Tyler  v.  Parr.  52  Mo.  249;  Bell  v.  Kaiser, 
50  Mo.  150;  Anderson  v.  Cox,  16  Neb.  10,  20  N.  W.  10;  Kiernan 
V.  Bloom,  86  N.  Y.  S.  899,  91  App.  Div.  429;  Jackson  v.  Car- 
rick,  25  Weekly  Not.  Cas.  (Pa.)  132;  Maboon  v.  Barrett,  192 
Mass.  552.  78  N.  E.  560. 

In  another  case,  where  a  sale  was  made  by  the  principal  to 
one  who  derived  his  information  that  the  farm  was  for  sale 
from  the  broker's  advertisement,  ho  was  denied  a  recovery  of 
commissions.     CJinrlton  v.  Wood,  11  Heisk.   (Tenn.)   19. 

A  real  estate  broker  suing  for  commissions  may  testify  that 


380  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

he  advertised  the  land  in  a  certain  newspaper,  no  effort  being 
made  to  prove  in  this  manner  the  terms  or  contents  of  the  ad- 
vertisement. Yarhorough  v.  Creager  (Tex.  Civ.  App.  '03),  77 
S.  W.  645. 

Sec.  562.    Accord  and  satisfaction. 

Where  there  was  a  bona  fide  contention  between  a  broker  and 
his  principal  as  to  whether  the  broker  should  be  charged  with 
the  loss  of  a  certain  sum,  and  the  broker  retains  and  uses  a 
check  from  the  principal  for  the  commissions  due  him,  less  said 
loss,  expressed  to  be  "in  full  settlement,"  an  accord  and  sat- 
isfaction is  established,  which  is  a  valid  defense  to  an  action 
by  the  broker  for  the  balance  of  his  commissions.  Vorhis  v. 
Elias,  56  N.  Y.  S.  134. 

Sec.  563.     Breach  of  contract. 

If  a  sale  of  land  by  the  owner  effects  a  breach  of  the  contract 
with  the  agent,  an  action  by  the  latter  should  be  based  on  such 
breach,  and  not  on  a  performance  of  the  contract.  Metzer  v. 
Wyatt,  41  111.  App.  487;  Alderson  v.  Houston,  96  P.  884,  154 
Cal.  1. 

Where  a  party  under  a  contract  is  to  secure  for  a  second 
party  options  on  certain  properties,  and  the  second  party  di- 
rects him  not  to  proceed  with  reference  to  securing  an  option 
on  one  of  the  properties,  this  is  a  breach  of  the  contract  for 
which  the  second  party  is  liable  in  damages.  Worthington  v. 
McGarry,  149  Ala.  251,  42  S.  988.  A  contract  giving  an  agent 
the  exclusive  authority  to  find  a  purchaser  for  a  farm  within 
a  given  time,  but  not  negativing  the  right  of  the  principal  to 
sell  the  property  himself,  is  not  breached  by  a  sale  by  the  owner 
at  public  auction,  through  the  medium  of  an  auctioneer  acting 
under  his  immediate  direction.  Jngold  v.  Symonds,  134  low^,, 
206,  111  N.  W.  802. 

The  broker's  right  to  a  commission  is  not  affected  by  a  sub- 
sequent breach  by  either  party  not  caused  through  his  fault. 
Parker  v.  Walker,  86  Tenn.  566,  8  S.  W.  391 ;  Bannon  v.  Moran, 
71  Mich.  261,  38  N.  W.  909 ;  Tilton  v.  James  8.  Gate  Sons  Co. 
(Wis.  Sup.  '09),  121  N.  W.  331.  Where  the  contract  employing  a 


PLEADINGS,  PRACTICE,  ETC.  381 

broker  to  procure  a  purchaser  stipulates  that  commissions  should 
be  paid  only  when  a  sale  is  effected,  the  broker  is  not  entitled  to 
commissions  unless  a  sale  is  effected,  though  he  may  be  entitled 
to  daniapes  for  the  wrongful  act  o^  the  owner  in  preventing 
a  sale.  McDcrmott  v.  Mahoney  {lowa  Sup.  '08),  115  N.  W.  32, 
139  Iowa,  292;  Boddij  v.  Brummett  &  Ellis  (Tex.  Civ.  App.  '08), 
110  S.  W.  532. 

A  real  estate  agent  who  has  obtained  a  purchaser  for  prop- 
erty placed  in  his  hands  to  be  sold  at  a  certain  price,  the  sur- 
plus to  go  to  the  agent  as  his  commission,  can  not  recover  for 
a  breach  of  the  owner's  contract  to  convey  the  property  a  sura 
paid  to  the  owner  to  induce  him  to  comply  with  the  contract, 
in  addition  to  the  commission  he  would  have  received  had  the 
sale  been  consummated.  Cornell  v.  Hanna  (Kan.  App.  '98),  53 
P.  790. 

"Where  plaintiff,  desiring  to  purchase  a  certain  tract  of  land, 
went  to  real  estate  agents,  and  they  informed  him  they  had  a 
letter  from  the  owner  in  which  she  offered  the  tract  at  $1,700, 
and  that  they  would  endeavor  to  procure  it  for  him  for  $1,760, 
$100  to  be  paid  down,  and  the  balance  to  be  paid  as  soon  as 
the  deed  could  be  procured;  but  when  the  owner  was  informed 
of  the  transaction  she  refused  to  take  less  than  $2,000 ;  the  real 
estate  agents,  having  acted  in  good  faith  and  done  all  in  their 
power  to  procure  the  title  of  the  land,  were  liable  only  for  the 
return  of  the  $100  paid,  and  not  for  damages  for  a  breach  of 
the  contract.     Kroeger  v.  Good,  13  Idaho,  184,  89  P.  632. 

In  action  for  damages  for  revocation  of  authority  to  sell 
land,  nothing  more  than  nominal  damages  can  be  recovered, 
where  the  agent  fails  to  show  that  he  could  have  made  a  sale 
on  the  principal's  terms.  Midligon  v.  Owen,  123  Iowa,  285,  98 
N.  W.  792. 

Where  a  firm  of  two  members  contracted  to  manage  and  sell 
lots  of  a  corporation  at  a  town  other  than  that  at  which  the 
partners  resided,  the  fact  that  the  basiness  was  carried  on  at 
the  town  where  the  lots  are  located  by  only  one  of  the  part- 
ners, was  not  a  breach  of  the  contract.  Albany  Land  Co.  v. 
Richel,  162  Ind.  222,  70  N.  E.  158.    See  also  Sec.  630. 

Where  an  owner  who  bad  granted  to  a  real  estate  broker  the 
exclusive  agency  for  the  sale  of  land  for  a  specified  period 


382  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

sold  the  timber,  which  was  the  most  valuable  part  of  the  land, 
and  thereby  practically  prevented  the  sale  of  the  land  accord- 
ing to  the  terms  of  the  contract,  the  broker  could,  without  wait- 
ing for  the  expiration  of  the  contract,  sue  for  the  breach.  Hunter 
V.  Wcnatchee  Land  Co.,  97  P.  494,  50  Wash.  438. 

Sec.  564.     Correspondence. 

Where  a  firm  of  real  estate  agents  sends  a  letter  to  a  land  owner 
enclosing  their  business  card  and  informing  him  what  the  busi- 
ness of  the  firm  is,  and  also  inquiring  whether  the  land  is  in  the 
market  and  its  price,  and  the  owner  immediately  answers,  giving 
the  price  of  the  land,  the  terms  and  conditions  of  sale,  and  the 
amount  of  commissions  which  he  is  willing  to  allow  to  the  real 
estate  agents  for  selling  it,  and  they  immediately  commence  to 
act  as  the  agents  of  the  land  owner  in  trying  to  procure  a  pur- 
chaser of  the  land,  they  are  his  agents,  and  when  they  find  a 
purchaser  ready  to  purchase  the  land  upon  the  terms  and  condi- 
tions prescribed,  and  sell  the  land  to  him,  they  have  earned  their 
commissions.  Stephens  v.  Scott,  43  Kan.  285,  23  P.  555 ;  Imper- 
ato  V.  Washoe,  93  N.  Y.  S.  489;  Rodman  v.  Manning  (Or.  Sup. 
'09)  99  P.  657,  1135;  Ispherding  v.  Wotf,  36  Ind.  App.  250,  75 
N.  E.  598;  Getzilsohn  v.  Donnell,  98  N.  Y.  S.  213,  56  Misc.  164; 
Montgomery  v.  Amster,  (Tex.  C.  A.  '09)  122  S.  W.  307;  a  person 
dealing  with  a  real  estate  agent,  with  knowledge  that  the  agent's 
authority  rests  on  correspondence  between  him  and  his  prin- 
cipal, must  ascertain  the  extent  of  the  agent's  authority,  and  is 
bound  by  the  restrictions  thereof;  Strong  v.  Ross,  33  Ind.  App. 
586,  71  N.  E.  918.  Real  estate  brokers  wrote  the  owner  of  a  lot 
that  they  had  a  customer  therefor  at  a  price  named,  and  asked 
for  an  answer,  and  in  reply  to  the  owner's  answer  asked  his  lowest 
price  and  stated  that  they  had  a  client  for  the  lot;  the  owner 
answered  naming  his  price,  to  which  the  brokers  replied  that 
their  client  deemed  the  price  too  high,  but  subsequently  wrote 
that  they  were  working  to  get  him  up  to  the  owner's  price,  on 
condition  that  a  second  mortgage  be  paid  off,  and  asked  the 
owner  to  come  to  the  city;  the  owner  did  not  answer  the  letter 
nor  come  to  the  city,  but  the  brokers  again  wrote  that  their  client 
would  pay  the  owner's  price  over  existing  mortgages,  to  which 
the  owner  answered  accepting,  providing  that  they  did  business  at 


PI,EADINGS,  PRACTICE,  ETC.  383 

once,  whereupon  the  brokers  telegraphed  or  wrote  the  owner  to 
come  to  their  office  on  a  day  stated,  but  this  the  owner  did  not 
do.  Held,  not  to  constitute  a  contract  of  employment.  Lotz  v. 
Levy,  104  N.  Y.  S.  1058,  120  App.  Div.  477.  Correspondence 
between  defendant  and  the  owner  respecting  defendant 's  author- 
ity and  the  nature  of  his  dealings  with  the  owner  was  admissible, 
not  as  declarations  of  third  persons  against  plaintiff,  but  as 
tending  to  show  the  authority  given  defendant  by  the  owner,  and 
what  he  did  thereunder.  Wefelv.  Stillman  (151  Ala.  249),  44 
S.  203.  On  the  issue  as  to  whether  a  loan  broker  was  the  agent 
of  the  defendant  in  negotiating  a  loan  for  him,  or  the  agent  of 
plaintiff  company  which  made  the  loan,  correspondence  between 
the  broker  and  the  plaintiff's  manager,  relative  to  defendant's 
loan  and  the  requested  extensions  thereof,  and  concerning  othe' 
loans  made  by  plaintiff  through  the  broker,  is  admissible  in  evi- 
dence, and  the  question  is  for  the  jury.  Jesson  v.  Texas  Land 
&  Loan  Co.  3  Tex.  Civ.  App.  25,  21  S.  W.  624 ;  Holliday  v.  Mc- 
WilUams,  76  Neb.  324,  107  N.  W.,  578 ;  Bradley  v.  Bower  (Neb. 
Sup.   '04),  99  N.  W.  490. 

Sec.  565.    Advances. 

The  fact  that  a  broker  employed  to  sell  land  advanced  the 
price  to  the  purchaser  did  not  make  him  the  purchaser's  agent. 
Goodson  V.  Embleton,  106  Mo.  App.  77,  80  S.  W.  22;  Lawson 
V.  Thompson,  10  Utah,  462,  37  P.  732.  A  broker  negotiated  a 
sale  of  plaintiff's  land  to  defendant,  but  had  the  deed  made  out 
to  a  third  person,  who  afterwards  conveyed  to  defendant ;  a  few 
weeks  after  the  sale  the  defendant  agreed  to  let  the  broker  sell 
the  land  for  him  at  an  advance,  the  profits  to  be  equally  divided 
between  them;  plaintiff  did  not  know  at  the  time  of  the  sale 
that  defendant  was  the  purchaser,  and  there  was  then  no  arrange- 
ment or  understanding  between  defendant  and  the  broker  as  to 
any  resale  of  the  property  or  division  of  the  profits.  Held,  that 
there  was  nothing  in  the  transaction  in  fraud  of  plaintiff.  Glover 
V.  Layton,  145  111.  92,  34  N,  E.  53. 

Sec.  566.     The  borrower. 

A  company  which  is  to  receive  a  commission  from  the  borrower 
for  procuring  a  loan,  and  which  makes  out  all  the  papers  without 


384  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

knowing  from  whom  the  loan  is  to  be  obtained,  and  before  sub- 
mitting them  to  the  lender,  is  the  agent  of  the  borrower  in 
procuring  the  loan.  Land  Mtge.  etc.  Co.  v.  Preston,  119  Ala. 
290,  24  S.  707;  Haminill  v.  American,  etc.  Mtge.  Co.,  127  Ala. 
90,  28  S.  558.  A  broker  who  negotiated  a  loan  and  received  his 
commissions  from  the  borrower,  taking  a  note  payable  at  his 
office  to  the  lender,  is  not  authorized  to  receive  payments  on  such 
note.  Englerd  v.  White,  92  Iowa,  97,  60  N.  W.  224.  See  also 
Sees.  255  and  257. 

Sec.  567.    Acceptances. 

Where  one  wrote  across  a  draft  "accepted"  in  the  name  of 
his  principal,  by  himself  as  agent,  but  which  acceptance,  though 
authorized  in  fact,  did  not  in  law  bind  the  principal,  it  was  held 
that  unless  the  agent  used  the  name  of  his  principal  without 
authority  in  fact,  he  could  not  be  held  personally  bound.  Walker 
V.  Bank  of  State  of  N.  Y..  5  Seld.  (X.  Y.)  582;  Duncan  v.  Niles, 
32  111.  532.  Where  defendant  wrote  plaintiff  offering  to  pay  him 
ten  per  cent,  commissions  for  sales  of  land  made  for  defendant 
at  a  specified  price  to  persons  obtained  by  plaintiff  that  defendant 
had  no  agreement  with,  and  plaintiff  immediately  began  to  search 
for  purchasers  whom  he  succeeded  in  procuring,  his  acts  consti- 
tuted a  sufficient  acceptance  of  the  offer.  Brown  v.  Smith,  113 
Mo.  App.  59,  87  S.  W.  556.  The  performance  of  work  by  real 
estate  agents  in  pursuance  of  an  employment  to  sell  land,  when 
at  once  brought  home  to  the  knowledge  of  their  employer,  is  an 
acceptance  of  the  contract  of  employment.  Arnold  v.  Nat.  Bk.  of 
Waupaca,  126  Wis.  362,  105  N.  W.  828,  3  L.  R.  A.  N.  S.  385. 
When  a  party  submits  to  another,  through  the  mail,  a  proposition 
of  purchase  or  sale,  the  receiver  of  the  proposition  has  the  right, 
within  a  reasonable  time  and  before  it  is  withdrawn,  to  accept 
by  a  writing  deposited  in  the  postoffice,  duly  stamped,  ready 
for  carriage  and  delivery,  and  such  an  acceptance  binds  the 
proposer  of  the  contract  from  the  time  the  deposit  is  made  in 
the  postoffice,  whether  it  be  delivered  or  not.  Scottish  American 
Mtge.  Co.  v.  Davis,  96  Tex.  504,  74  S.  W.  17,  18.  Where  an 
owner  of  real  estate  asks  a  real  estate  broker  "to  get  a  deal,"  it 
is  not  necessary  for  the  real  estate  broker  to  assent  in  M^ords,  if 
he  procures  a  purchaser  he  makes  a  contract  by  performance. 


PLEADINGS,  PRACTtCE,  ETC.  385 

Lamb  v.  Prettyman,  33  Pa.  Super.  Ct.  190.  Where  defendant 
sent  to  plaintiff  a  power  of  attorney  for  the  sale  by  him  as  agent 
of  defendant's  real  estate,  if  an  acceptance  was  necessary  it  was 
accepted  by  a  letter  from  plaintiff  stating  that  he  had  a  buyer 
for  the  place  and  that  he  would  leave  on  a  day  named  with  him, 
for  the  purpose  of  looking  through  the  property.  Luckett  Land 
&  Em.  Co.  V.  Brow)},  118  La.  943,  43  S.  628. 

The  mere  approval  of  a  contract  by  a  broker,  where  it  sub- 
stantially differs  from  that  Avhich  he  was  employed  to  make,  can 
not  of  itself  be  held  to  be  an  acceptance  of  i^erformance  of  the 
broker's  obligations.    Reiger  v.  Biggs,  29  Mo.  App.  421. 

In  an  action  by  the  grantor  of  realty  to  set  aside  a  sale,  on 
the  ground  that  the  agent  employed  by  her  to  procure  a  pur- 
chaser, in  fact  purchased  the  property,  while  she  thought  the  sale 
was  being  made  to  another,  it  appeared  that  the  agent  had  in- 
duced her  to  sign  a  contract  of  purchase  with  such  other  party, 
the  agent  agreeing  to  execute  with  the  other  a  bond  accompany- 
ing a  mortgage  which  was  to  be  given  to  the  grantor;  subse- 
quently a  deed  was  given  running  to  the  agent;  the  bond  was 
signed  by  the  agent  and  the  other,  and  the  mortgage,  signed  by 
the  agent  alone,  was  kept  by  him  for  the  purpose  of  record; 
after  the  grantor  learned  that  the  deed  ran  to  the  agent  she 
informed  him,  on  the  payment  of  the  interest  on  the  purchase 
money  mortgage  given  by  him,  that  she  would  put  the  money 
in  bank  until  she  got  her  property  back,  and  stated  that  she  was 
going  to  see  a  lawyer.  Held,  that  the  acceptance  of  the  money 
did  not  constitute  a  ratification  of  the  transaction.  Clark  v. 
Bird,  72  N.  Y.  S.  769,  66  App.  Div.  284.    See  also  Sees.  458,  618. 

Sec.  568.     Conformity. 

Where  the  owner,  on  being  informed  by  the  broker  that  he 
has  sold  the  land  refuses  to  convey,  without  objecting  to  all  the 
terms  of  the  sale,  such  conduct  is  some  evidence  that  the  sale 
conformed  to  the  directions  given  to  the  broker.  Smith  v.  Keller, 
151  111.  518,  38  N.  E.  250. 

Sec.  569.     Costs. 

Where  plaintiff,  when  she  sued  to  compel  specific  performance 
of  a  contract  to  convey  land,  made  by  defendant  with  her  as- 


N 


386  AMERICAN    liAW   REAL   ESTATE   AGENCY. 

signor,  knew  who  owned  the  property  at  the  time  the  defendant 
undertook  to  contract  for  its  conveyance,  and  that  the  contract 
was  worthless,  she  was  unable  to  recover  the  costs  incurred  in 
litigation,  in  an  action  on  defendant's  warranty  of  authority  as 
agent  to  sell.  Rowland  v.  Hall,  106  N.  Y.  S.  55,  121  App. 
Div.  459. 

Sec.  570.     Conditions  precedent  to  right  to  commissions. 

A  proviso  in  a  broker's  contract  that  commission  shall  be 
payable  out  of  the  first  cash  payment  is  not  a  condition  precedent 
to  the  broker's  right  to  recover  his  commissions,  and  does  not 
mean  that  unless  there  is  a  cash  payment  there  are  to  be  no 
commissions.  Finch  v.  Guardian  Trust  Co.,  92  Mo.  App.  263. 
Hanna  v.  Espalla  (148  Ala.  313),  42  S.  443.    See  also  Sec.  501. 

The  principal  agreed  to  pay  the  broker's  commissions  for  sell- 
ing land  when  the  vendees  paid  a  certain  sum  and  gave  their 
notes  and  mortgage  for  the  balance.  The  vendees  executed  their 
note,  but  never  paid  the  money.  The  broker  was  not  entitled  to 
commissions.  McPhail  v.  Bufll,  87  Cal.  115,  25  P.  266 ;  Ormsby 
V.  Graham,  123  Iowa.  202,  98  N.  W.  724. 

Where  a  contract  of  employment  makes  the  right  to  a  com- 
mission dependent  upon  the  payment  of  the  purchase  price,  the 
broker  can  not  recover  until  the  transaction  is  finally  consum- 
mated. Cremer  v.  Miller,  56  Minn.  52,  57  N.  W.  318;  West  v. 
Stoeckel,  6  Ohio  Dec.   (Rep.)   1082,  10  Am.  L.  Rec.  309. 

"Where,  in  an  action  by  a  broker  for  commissions  for  selling 
land,  plaintiff  relied  on  a  written  agreement  by  which  payment 
of  commissions  was  to  be  made,  "one-Jialf  when  the  second  pay- 
ment of  building  loan  is  due  and  payable,  and  the  balance  imme- 
diately after  inelosure  payment  is  due  and  made,"  these  two 
events  were  conditions  precedent  to  plaintiff's  right  to  recover, 
and  should  have  been  pleaded  and  proved  on  the  trial.  Turner 
v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387;  Jaupal  v.  Gold.  106  N. 
Y.  S.  891,  122  App.  Div.  401. 

Where  a  broker  agrees  to  sell  land  upon  condition  that  the 
owmer  shall  first  make  $500  out  of  the  sale,  the  broker  to  have 
the  rest  as  his  commission,  he  is  not  entitled  to  a  commission 
for  merely  finding  a  purchaser,  upon  the  sale  to  such  purchaser 
falling  through  on  account  of  a  defect  in  the  title.    Seattle  Land 


PLEADINGS,    PRACTICE,    ETC.  387 

Co.  V.  Daij,  2  Wash.  451 ,  27  P.  74 ;  Hm  v.  Eggers,  78  N.  Y.  S. 
1119,  38  Misc.  726,  affirming  76  N.  Y.  S.  980,  37  Misc.  845. 
Contra,  Putzel  v.  Wilson,  2  N.  Y.  S.  47,  49  Hun,  220. 

A  stipulation  that  the  princij)al  is  to  pay  the  broker  a  cer- 
tain commission  for  negotiating  a  loan,  when  made,  and  the 
loan  fails  by  reason  of  a  defective  title,  does  not  make  the  right 
to  a  commission  dependent  on  the  making  of  the  loan.  Fitz- 
patrick  v.  Gihon,  176  Mass.  477,  57  N.  E.  1000.    See  also  Sec.  501. 

"Where  a  broker's  contract  for  commission  provided  that  the 
amount  sued  for  was  payable  out  of  the  last  cash  payment, 
such  payment  constituted  a  condition  precedent  to  any  liability 
on  defendant's  part  to  pay  such  sum  to  plaintiff,  and  hence  an 
allegation  in  plaintiff's  complaint  that  the  sum  sued  for  ''be- 
came due"  on  a  given  date,  was  not  a  sufficient  allegation  that 
the  condition  precedent  had  happened.  Nekarda  v.  Presherger, 
107  N.  Y.  S.  897,  123  App.  Div.  418. 

If  the  right  to  a  commission  is  dependent  on  payment  of 
the  price  by  the  purchaser,  the  broker  must  show  either  pay- 
ment or  a  tender  thereof.  Burvcit  v.  Edling,  19  Tex.  Civ. 
App.  711,  48  S.  W.  775 ;  Fisli  v.  Soule,  87  Cal.  313,  25  P.  430. 
Under  a  contract  providing  for  the  payment  of  commissions 
"at  the  time  of  the  payment  by  said  purchaser,"  the  broker 
was  entitled  to  a  commission  on  a  partial  paj^ment,  payment 
of  commissions  not  being  dependent  on  the  payment  of  the 
entire  purchase  price,  though  the  principal,  a  part  owner,  re- 
ceived no  part  of  the  said  payment.  Frank  v.  Bonnevie,  20 
Colo.  App.  164,  77  P.  363.    See  also  Sees.  297,  470. 

Where  land  is  sold  for  a  price  payable  in  installments,  and 
the  commission  is  to -be  paid  as  each  installment  is  received, 
if  the  purchaser  defaults  after  making  certain  payments,  and 
the  land  is  sold  at  judicial  sale,  and  bought  in  by  the  prin- 
cipal in  full  satisfaction  of  the  price,  the  broker  is  entitled  to 
full  commissions.  Crane  v.  Eddy,  191  111.  645,  61  N.  E.  431,  85 
Am.  St.  R.  284. 

Where  the  parties  were  familiar  with  the  facts,  and  defend- 
ants were  notified  that  plaintiffs  would  claim  their  commis- 
sions, a  demand  before  suit  was  unnecessary.  Clifford  v.  Meyer, 
6  Ind.  App.  633,  34  N.  E.  23.  In  some  contracts  the  delivery 
of  the  deed  is  made  a  condition  precedent  to  the  broker's  being 


388  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

entitled  to  his  commissions.     Beehe  v.  Roberts,  3  E.  D,  Smith 
(N.  Y.),  194.     See  also  Sec.  536. 

Where  an  authorized  agent  agreed  to  sell  land,  subject  to 
the  approval  of  the  owners,  the  approval  of  the  owners  was 
necessary  to  constitute  a  contract  enforceable  by  either  party, 
as  the  purchaser  was  not  bound  to  accept  the  conveyance  of 
an  interest  of  only  one  owner.  Jacobson  v.  Hendricks  (Conn. 
Sup.  10), '75  A.  85. 


CHAPTER  11. 


SECTION. 

571.  Courts. 

572.  Equity. 

573.  Exceptions. 

574.  Forgery. 

575.  Loan  payable  in  gold. 

576.  Licenses. 

577.  Limitations      and       restric- 

tions. 

578.  Broker    acting    as    a    mere 

middleman. 

579.  Unless    mistake    be    pleaded 

and  proved  &etfih  pur- 
chaser bound  for  the 
whole  comnrission. 

580.  "Immediate  notice"  means  in 

a  reasonable  time. 


SECTION. 

58  L     Principal   may   remain   neu- 
tral as  to  broker's  claim. 

582.  Proposition  inconsistent  with 

negative   to  prove. 

583.  Parol      contract     of      agent 

binds  unnamed  principal. 

584.  Broker    to    share    in    profits 

for   sales   not   a   partner- 
sliip. 

585.  To  pay  commission  on  with- 

drawing land  strictly  con- 
strued. 

586.  In    trying    to    effect    a    sale 

of'  real  estate  party  may 
extravagantly  extol. 


Sec.  571.     Courts. 

Contracts  with  brokers  for  the  sale  of  real  property  are 
presumptively  entered  into  in  good  faith,  and  it  is  the  province 
of  the  courts,  in  administering  the  law  as  to  such  contracts, 
to  carefully  protect  the  interests  of  the  parties  according  to 
the  true  spirit  and  meaning  of  the  contracts.  Carder  v.  O'Neill, 
176  Mo.  401,  75  S.  W.  764.  Where  two  parties  make  a  parol 
contract,  and  they  disagree  about  its  terms,  it  is  the  duty  of 
the  court,  in  an  action  arising  thereon,  to  explain  to  the  jury, 
when  requested,  the  legal  effect  of  each  party's  recollection  of 
the  terms  of  the  same.  Stewart  v.  Fowler,  37  Kan.  677,  15 
P.  918. 


Sec.  572.    Equity. 

A  court  of  equity  will  not  enforce  against  the  owner  of  land 
a  contract  of  sale  made  by  his  agent  under  authority  given 
six  years  before,  where  the   land  has   greatly  appreciated  in 

389 


390  AMERICAN   LAW   KK4.L   ESTATE   AGENCY. 

value  meantime,  and  the  agent,  without  advising  his  principal 
of  such  fact,  made  the  sale  for  a  price  grossly  inadequate  at 
the  time,  though  within  the  terms  of  the  original  authority. 
Hall  V.  Gamhrill,  92  Fed.  32,  34  C.  C.  A.  190;  Proudfoot  v. 
Wightman,  78  111.  553. 

A  broKer  procured  to  be  made  to  himself  a  deed  of  land 
which  he  was  employed  to  sell,  the  grantor  intending  it  only 
as  a  means  of  carrying  into  effect  a  supposed  sale  to  a  third 
party,  but  the  grantee  described  intended  to  obtain  the  land 
to  his  own  use,  and  also  fraudulently  misrepresented  the  value 
of  the  consideration,  which  consisted  of  certificates  of  stock 
in  mining  companies.  Held,  that  the  deed  was  not  void,  but 
only  voidable,  on  either  ground,  and  that  if  the  grantor,  who 
soon  learned  the  facts  entitling  him  to  a  reconveyance,  neg- 
lected for  more  than  two  years  to  do  any  act  to  avoid  it,  and 
exchanged  the  stocks  for  other  stocks,  he  must  be  taken  to 
have  ratified  the  conveyance,  and  could  not  maintain  a .  writ 
of  entry  to  recover  the  land.  Bassett  v.  Brown,  105  Mass.  551. 
Compare  Sec.  321. 

An  agent  sold  land  of  his  principal  and  took  a  note  for  the 
purchase  money  in  the  name  of  himself  and  his  principal,  and 
assigned  it  to  C,  who  sued  thereon  in  the  names  of  the  payees 
for  his  use  and  recovered  judgment.  Held,  that  the  assign- 
ment by  the  agent  passed  no  interest  of  his  principal,  and 
that  equity  would  relieve  against  the  judgment.  Wright  v. 
Ray,  3  Humphrey  (Tenn.),  68. 

Where  defendant  obtained  authority  from  plaintiff  to  sell 
timber  for  the  latter,  and  procured  purchasers  at  the  price 
named  by  plaintiff,  but  represented  to  plaintiff  that  he  made 
the  sale  at  a  much  less  price,  and  could  not  get  the  price  named 
by  plaintiff,  and  thus  induced  plaintiff  to  convey  the  timber 
to  the  purchasers  at  the  less  price  and  appropriated  the  bal- 
ance paid  for  the  timber  by  the  purchasers  to  himself,  under 
a  secret  agreement  with  them,  the  transaction  was  a  fraud  on 
plaintiff,  and  he  was  entitled  to  equitable  relief.  Lee  v.  PattUlo, 
105  Va.  10,  52  S.  E.  69.6. 

In  an  action  for  the  breach  of  a  contract  to  pay  a  broker  a 
specific  amount  for  procuring  a  loan  on  defendant's  prop- 
erty, where  defendant's  refusal  to  accept  the  loan  was  shown. 


PLEADINGS,  PRACTICE,  ETC.  391 

defendant  may  prove  that  the  broker  had  agreed  to  pay  the 
lender  a  bonus  of  a  specified  per  cent,  of  his  commission,  to 
show  the  amount  the  broker  was  entitled  to  recover,  on  the 
equitable  principle  that  the  recovery  must  be  confined  to  the 
actual  loss.  FincJr  v.  Pierce,  103  N.  Y.  S.  765,  53  Misc.  554; 
Gatling  v.  Central  Spar  Verein,  73  N.  Y.  S.  765,  -55  Misc.  554 ; 
McGovern  v.  Bennett,  146  Mich.  558,  109  N.  W.  1055,  13  D.  L. 
N.  853 ;  Duncan  v.  Borden,  13  Colo.  App.  481,  59  P.  60.  See  also 
Sees.  1070,  1078. 

Defendant,  a  real  estate  agent,  submitted  to  his  non-resident 
principal  an  offer  for  certain  real  estate,  made  by  a  person 
in  his  employ,  without  stating  this  fact,  at  a  time  when  values 
were  rapidly  appreciating,  which  offer  was  accepted  by  plain- 
tiff. The  alleged  purchaser,  finding  himself  unable  to  raise  the 
money,  conveyed  to  defendant,  who  assumed  the  former's  lia- 
bility. Held,  that  the  conveyance  would  not  be  cancelled  in 
the  absence  of  proof  that  defendant  intended  to  purchase  his 
principal's  property  in  the  name  of  another.  Bookwalter  v. 
Lansing,  23  Neb.  291,  36  N.  W.  549. 

Where  agents  of  the  owner  of  land  in  contracting  to  sell 
it  exceeded  their  authority  by  extending  the  time  within  which 
the  purchaser  could  make  a  cash  payment,  and  by  receiving  a 
sum  to  be  held  for  the  principal  as  a  forfeit  or.  payment  on 
the  purchase  price,  the  purchaser  was  not  entitled  to  specific 
performance  of  the  contract.  Shirley  v.  Coffin  (Tex.  Civ.  App. 
'09),  121  S.  W.  181. 

Defendant  ^I.,  representing  that  he  owned  or  controlled  cer- 
tain mining  claims,  employed  plaintiff  to  procure  capital  to 
purchase  and  operate  them,  whereupon  complainant  procured 
defendant  L.  to  advance  money,  under  a  contract  between  M. 
and  L.  for  the  conveyance  of  the  claims  to  a  corporation  which 
they  formed,  it  being  agreed  that  a  portion  of  the  stock  should 
be  issued  to  M.  in  consideration  of  a  transfer  of  the  claims  to 
the  corporation,  and  that  a  portion  of  ]\I.'s  stock  so  issued 
should  be  transferred  to  L.,  in  payment  for  the  money  M'hich 
he  advanced,  bpth  iM.  and  h.  agreeing  that  the  plaintiff  should 
receive  $50,000  of  such  stock  for  his  commissions.  M.  in  fact 
never  purchased  or  conveyed  any  claims  to  the  corporation 
with  money  furnished  by  L.,  but  squandered  such  money,  and 


392  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

no  stock  was  issued  to  him  therefor.  Held,  that,  while  com- 
plainant, under  such  facts,  had  a  cause  cf  action  at  law  for  his 
services  against  M.  &  L.,  he  could  not  maintain  a  bill  in  equity 
against  the  corporation,  or  either  M.  or  L.  to  compel  a  trans- 
fer of  $50,000  of  the  corporation's  stock  to  him.  Also  held, 
that  specific  performance  of  M.'s  agreement  to  convey  the  min- 
ing claims  to  the  corporation  could  not  be  decreed,  as  it  did 
not  appear  that  ^I.  had  title  thereto,  but  the  contrary;  and 
that  neither  JMartin,  nor  Ryan,  nor  Ijewis  had  equitable  title 
to  the  stock,  which  belonged  to  the  company.  Ryan  v.  Martin, 
165  F.  765. 

A  vendor  of  land  Avho«has  been  compelled  by  a  decree  avoid- 
ing the  sale  to  repay  the  commissions  paid  directly  to  the 
agent  by  the  purchaser  as  a  part  of  the  consideration,  being 
entitled  to  recover  them  from  the  agent  in  assumpsit,  is  not 
entitled  to  relief  in  equity  by  subrogation  to  the  rights  which 
the  purchaser  had,  but  did  not  urge  against  the  agent.  Volker 
V.  Fisk  (N.  J.  Eq.  '09^,  72  A.  1011. 

Sec.  573.    Exceptions. 

Where  an  agent  in  making  a  sale  of  real  estate  has  acted  as 
agent  for  the  vendor  as  well  as  the  vendee,  he  can  not  recover 
commissions  from  the  vendee,  unless  he  brings  the  case  within 
one  of  the  established  exceptions  to  the  general  rule  that  an 
agent  can  not  recover  commissions  from  both  parties  to  the 
transaction.    Bunn  v.  Kerch,  214  111.  259,  73  N.  E.  419. 

Sec.  574.     Forgery. 

The  treasurer  of  a  charitable  corporation,  without  authority, 
took  railroad  bonds  registered  in  the  name  of  the  corpora- 
tion, to  a  broker  for  sale;  the  broker  refused  to  handle  the 
bonds  unless  they  were  made  transferable  to  bearer  by  the 
legal  transfer  agent  of  the  railroad;  the  transfer  agent  re- 
quired from  the  corporation  a  copy  of  a  resolution  of  its  di- 
rectors authorizing  the  transfer  and  a  power  of  attorney  to 
make  it ;  tlie  treasurer  drew  up  a  resolution  of  authority  and 
forged  thereto  the  signatures  of  the  officers  and  the  seal  of  the 
corporation,  and  also  forged  a  power  of  attorney;  the  transfer 
agent  thereupon,  in   good   faith,  made  the   transfer,   and   the 


PLEADINGS,  PRACTICE,  ETC.  393 

broker  sold  the  bonds  Held,  that  the  broker  and  the  railroad 
company  were  liable  to  the  corporation  for  the  value  of  the 
bonds,  though  both  acted  in  good  faith,  and  the  corporation 
may  recover  from  either.  Jennie  Clarkson  Home  for  Children 
V.  R.  R.  Co.,  87  N.  Y.  S.  348,  1137,  1138,  92  A.  D.  491,  618,  617, 
182  N.  Y.  47,  507,  74  N.  E.  571,  1118,  70  L.  R.  A.  787.  Compare 
Sec.  351. 

Ordinarily,  however,  brokers  are  not  personally  liable  for 
loss  on  a  forged  note  sold  by  them,  where  they  advised  the  ven- 
dee at  the  sale  that  they  were  acting  as  agents  and  disclosed 
their  principal.    Bailey  v.  Galhreath,  100  Tenn.  599,  47  S.  W.  84. 

Sec.  575.    Loan  payable  in  gold. 

"Where  plaintiffs  were  employed  by  defendants  to  procure  for 
them  a  loan  on  a  mortgage  on  land,  and  the  loan  was  not  made 
solely  because  the  lender  found  insisted  on  a  clause  in  the 
mortgage  that  the  principal  and  interest  should  be  paid  in 
gold;  the  plaintiffs  did  not  perform  the  contract  and  are  not 
entitled  to  compensation,  sin(?ft  tlie  contract  meant  a  loan  to 
be  paid  in  lawful  money,  and  the  mortgage  loan  could  not  be 
paid  in  but  one  kind  of  money.  Caston  v.  Quimby,  178  Mass. 
153,  59  N.  E.  653. 

Sec.  576.    Licenses. 

In  the  absence  of  evidence  to  the  contrary,  that  the  plain- 
tiff was  licensed  to  act  as  a  broker  will  always  be  presumed. 
Munson  v.  Fenno,  87  111.  App.  655;  Shapler  v.  Scott,  85  Pa. 
St.  329. 

It  is  the  rule  in  most  jurisdictions  that  a  broker  who  fails 
to  procure  a  license  to  carry  on  his  business,  as  required  by 
law,  is  barred  recovery  of  commissions  for  acting  as  broker. 
Whitfield  V.  Hilling,  50  111.  App.  179 ;  Eckert  v.  Collot,  46  111. 
App.  361;  Reader  v.  Jones  (Del.  Super.  '02),  65  A.  571;  Rich- 
ardson V.  Brix,  94  Towa,  626,  63  N.  W.  325;  Yount  v.  Denning, 
52  Kan.  629,  35  P.  207;  BucMey  v.  Humason,  50  Minn.  195, 
52  N.  W.  385 ;  Wicks  v.  Carlisle,  12  Okla.  337,  72  P.  377 ;  John- 
son V,  Hulings,  103  Pa.  St.  498;  Coles  v,  Meade,  5  Pa.  Super. 
Ct.  334;  Costello  v.  Goldheck,  9  Phila.  (Pa.)  158;  Stevenson 
V.  Ewing,  87  Tenn.  46,  9  S.  W.  230;  Saule  v.  Rtjan  (Tenn.  Ch. 


394  AMERICAN    LAW    REAL   ESTATE   AGENCY. 

App.  '1)9),  53  S.  W.  977;  Pile  v.  Carpenter,  1.18  Tenn.  288,  99 
S.  W.  360. 

In  some  of  the  States  the  courts  allow  the  recovery  of  com- 
missions by  an  unlicensed  broker,  upon  the  ground  that  the 
license  laws  are  enacted  purely  as  revenue  measures,  and  have 
no  effect  on  the  rights  of  the  parties  inter  se.  Houston  v.  Bo- 
agni,  McGloin  (La.),  164;  Walker  v.  Baldwin,  103  Md.  352, 
63  A.  362;  Tooker  v.  Duckworth,  107  Uo.  App.  231,  80  S.  W. 
963;  Prince  v.  Eighth  St.  Baptist  Ch.,  20  Mo,  App.  332;  Buck- 
man  V.  Bergholz,  37  N.  J.  L.  437;  Amato  v.  Dreyfus  (Tex.  Civ. 
App.  '96),  34  S.  AV.  450;  Watkins  LcL  Mtge.  Co.  v.  Thetford 
(Tex.  Civ.  App.  '06),  96  S  W.  72;  Ober  v.  Stephens,  54  W. 
Va.  354,  46  S.  E.  195;  Stiewel  v.  Lalhj,  89  Ark.  195,  115  S.  W. 
1134. 

The  fact  that  a  real  estate  agent  had  a  license  at  the  time 
of  the  action  to  recover  commissions,  does  not  raise  a  presump- 
tion that  he  had  a  license  two  years  before  at  the  time  of  the 
transaction.     Eckert  v.  Collot,  46  111.  App.  361. 

One  who,  while  engaged  in  other  business,  sells  land  for  an- 
other, may  recover  his  commissions,  though  he  had  not  taken 
out  a  license  as  required  of  real  estat.e  agents,  since  a  single 
sale  does  not  constitute  the  exercise  of  the  business  of  real 
estate  brokerage.  O'Neill  v.  Sinclair,  153  111.  525,  39  N.  E. 
124;  Boeder  v.  Butler,  19  Pa.  Sup.  Ct.  604;  Jackson  v.  Hough, 
38  W.  Va.  236,  18  S.  E.  575;  Pope  v.  Beale,  108  Mass.  561; 
Packer  v.  Shcppard,  127  111.  App.  508.    Infra. 

The  fact  that  the  agent  had  taken  out  no  license  as  a  real 
estate  agent  under  the  internal  revenue  law  of  the  United 
States  will  not  affect  his  right  to  recover  compensation ;  the 
sole  object  of  that  law  in  requiring  real  estate  agents  to  take 
out  licenses  was  to  raise  revenue ;  the  question  in  such  case  is, 
whether  the  statute  was  intended  as  a  protective  measure  or 
merely  as  a  fiscal  expedient;  whether  the  Legislature  intended 
to  prohibit  the  act  unless  done  by  a  qualified  person,  or  merely, 
that  the  person  who  did  it  should  pay  a  license  fee ;  if  the  lat- 
ter, the  act  is  not  illegal.    Buckman  v.  Bergholz,  37  N.  J.  L.  437. 

A  trust  company  incorporated  in  Pennsylvania,  under  an 
act  of  the  Legislature,  and  authorized  to  buy  and  sell  real  es- 
tate, is  not  liable  as  a  real  estate  broker  for  the  license  tax 


PLEADINGS,  PRACTICE,  ETC.  395 

imposed  on  any  individual  or  corporation.  Commonwealth  v. 
Real  Estate  Trust  Co.,  211  Pa.  St.  51,  60  A.  551 ;  Manke  v.  Tingh, 
98  P.  792  (Kan.  Sup.  '08). 

An  auction  sale  of  real  property  does  not  make  the  one  ne-' 
gotiating  such  sale  a  broker  within  the  meaning  of  the  license 
act.  Yedinsky  v.  Stronsc,  6  Pa.  Super.  Ct.  587,  42  Week,  Not. 
Cas.  12.  A  receipt  for  license  from  the  State  Treasurer  is  not 
such  a  license  as  authorizes  a  real  estate  broker  to  act  so  as 
to  relieve  himself  from  penalties,  and  to  enable  him  to  recover 
commissions.    Jadwin  v.  Hiirlcij,  10  Pa.  Super.  Ct.  104. 

Unless  it  clearly  appears  that  the  Legislature  intended  more, 
it  will  be  held  that  the  penalty  imposed  by  the  act  on  a  real 
estate  agent  selling  property  on  commission,  without  a  license, 
excludes  all  others.  Oher  v.  Stephens,  54  W.  Va.  354,  46  S. 
E.  195 ;  CoU  V.  Dimlevie,  63  W.  Va.  398,  60  S.  E.  384.  A 
person  who  sells  property  for  another  under  a  special  contract, 
without  holding  himself  out  to  be  a  real  estate  broker,  may  re- 
cover though  he  has  not  complied  with  the  act  requiring  real 
estate  brokers  to  take  out  a  license.  Black  v.  Snook,  204  Pa. 
St.  110,  53  A.  648;  Yedinsky  v.  Strouse,  6  Pa.  Super.  Ct.  587, 
42  W.  Not.  Cas.  12.     Snpra.     Also  Sec.  604. 

Where  a  resident  of  New  Jersey  contracts  with  a  real  estate 
broker  in  Pennsylvania  to  sell  real  estate  situate  in  New  Jersey, 
he  is  not  required  to  have  a  real  estate  broker's  license  under 
the  Pennsylvania  statute,  to  make  his  contract  valid.  Callaway 
V.  Prettyman,  218  Pa.  St.  293,  67  A.  418.  In  an  action  to  re- 
cover commissions  on  a  sale  or  exchange  of  real  estate,  where 
the  .plaintiff  describes  himself  in  his  statement  of  claim  as  a 
dealer  in  real  and  personal  property,  and  in  the  regular  course 
of  business  made  the  sale  or  exchange  in  question,  and  it  is 
admitted  that  plaintiff  had  not  taken  out  a  license,  as  required 
by  law,  the  statement  of  claim  is  admissible  as  evidence  tending 
to  show  that  the  plaintiff  is  a  real  estate  broker,  and  when  the 
statement  is  supported  by  the  evidence  of  two  witnesses  called 
by  the  defendant,  it  is  error  for  the  court  to  give  binding  in- 
structions for  plaintiff.  Sprague  v.  Reilly,  34  Pa.  Super.  Ct; 
332. 

If  a  broker  was  duly  licensed  at  the  time  he  completed  the 
negotiations  for  a  sale  of  real  estate,  by  which  the  purchaser 


396  A.AIERICAN   LAW    REAL   ESTATE   AGENCY. 

leased  the  same  with  an  option  to  purchase,  the  fact  that  the 
broker  was  not  licensed  at  the  time  the  purchaser  elected  to 
exercise  such  option  was  no  defense  to  the  broker's  claim  for 
'commissions.  Coates  v.  Locust  Point  Co.,  102  Md.  291,  62  A. 
625. 

If  it  does  not  appear  from  the  evidence  that  plaintiff  was 
licensed  to  engage  in  or  carry  on  the  business  of  a  real  estate 
broker  in  the  State  where  the  contract  is  alleged  to  have  been 
made,  the  defendant  would  not  be  entitled  for  this  reason  to 
a  verdict,  if  there  is  nothing  in  the  evidence  to  show  that 
a  real  estate  broker  is  required,  under  the  law  of  that  State,  to 
have  a  license  in  order  to  carry  on  the  business,  and  there  is 
no  averment  in  the  pleadings  that  the  plaintiff  was  acting  as 
a  licensed  real  estate  broker  in  the  transaction  of  the  business 
in  question.  Richards  v.  Eichman,  5  Penne.  (Del.)  558,  64  A. 
238. 

Sec.  577.    Limitations  and  restrictions. 

Where  the  contract  of  employment  limits  the  same  to  the 
sale  of  certain  property,  it  must  be  made  to  appear  that  the 
property  sold  was  within  the  description.  Maze  v.  Gordon, 
96  Cal.  61,  30  P.  962.  Where  a  broker  is,  by  agreement,  to 
receive  commissions  for  procuring  a  purchaser  for  land  only 
on  condition  that  a  sale  is  made  to  a  certain  person,  he  can 
not  recover  if  a  sale  to  such  purchaser  is  not  consummated, 
owing  to  the  fault  of  either  of  the  parties.  Lyle  v.  Uni.  Land, 
etc.,  Co.  (Tex.  Civ.  App.  '95),  30  S.  W.  723.  Compare  Sees. 
526  and  527.  A  qualification  of  a  broker's  right  to  commis- 
sions for  a  sale  of  property,  that,  /'if  sold  to  a  party  sent'  by 
3Ir.  Rapp  all  this  week,  then  no  commission  is  to  be  paid;  also, 
A.  Ozias,"  limits  the  time  within  which  a  sale  to  such  per-sons 
might  be  made  without  payment  of  commissions,  to  "this  week." 
Gaty  V.  Clark,  28  IMo.  App.  332 ;  Smith  v.  Tate,  82  Va.  657.  ' 

Sec.  578.    Broker  acting  as  a  mere  middleman. 

If  the  broker  acts  as  a  mere  middleman,  and  finds  a  pur- 
cnaser  at  the  price  fixed,  it  is  immaterial  that  each  party  to 
the  transaction  was  ignorant  of  the  broker's  employment  by 
the  other  party.  Montross  v.  Eddy,  94  Mich.  100,  53  N.  W.  916. 
A  broker  whose  undertaking  is  merely  to  find  a  purchaser  at 


PLEADINGS,  PRACTICE,  ETC.  397 

a  price  fixed,  or  at  a  price  satisfactory  to  the  seller,  is,  in 
reality,  only  a  middleman,  whose  duty  is  performed  when  the 
buyer  and  seller  are  brought  together.  •  Johnson  v.  Hayward^ 
11  Neb.  35,  107  N.  W.  384,  5  L.  R.  A.  n.s.  112.  Compare  Harten 
V.  Loeffler,  31  App.  D.  C.  362. 

In  an  action  to  recover  a  commission  for  services  rendered 
as  a  middleman  in  bringing  the  parties  together  to  make  an 
exchange  of  property,  evidence  held  to  show  that  plaintiff  was 
an  active  broker  representing  the  party  with  whom  defendant 
made  the  exchange,  and  was  not  a  mere  middleman  who  simply 
brought  the  parties  together  and  permitted  them  to  make  their 
own  trade,  and  was  consequently  not  permitted  to  recover  com- 
missions from  defendant.  Pinch  v.  M  or  ford,  142  Mich.  63,  105 
N.  W.  22.  Under  a  petition  alleging  defendant's  employment 
of  plaintiff  as  a  broker,  in  effecting  a  sale  of  property  for  de- 
fendant, plaintiff  can  not  recover  on  proof  of  services  as  a  mere 
middleman.  Southach  v.  Lane,  65  N.  Y.  S.  629,  32  Misc.  141. 
A  broker  who  acts  as  a  middleman  to  effect  a  purchase  and 
sale  of  property,  represents  both  the  purchaser  and  the  seller 
and  is  the  common  agent  of  both.  Colvin  v.  Williams,  3  Harr. 
&  J.  (Md.)  38. 

To  a  certain  extent  and  for  certain  purposes,  by  the  un- 
derstanding and  usages  of  business  and  the  nature  of  his  em- 
ployment, a  broker  is  authorized  to  act  for  both  parties.  But 
what  he  does  in  that  relation  he  does  as  an  indifferent  person 
and  not  in  the  interest  of  either  jiarty.  Every  one  who  employs 
him  is  presumed  to  know  and  consent  that  to  that  extent  and 
for  such  purposes  he  may  so  act.  But  beyond  that  he  has  no 
right  to  engage  in  the  interests  of  the  other  party,  without 
the  actual  knowledge  and  consent  of  his  principal.  Even  cus- 
tom or  usage  will  not  be  allowed  to  extend  the  right  to  act  for 
and  receive  commissions  from  both  parties  to  matters  where 
the  interests  of  the  parties  are  or  may  be  diverse.  Walker  v. 
Osgood,  98  Mass.  348.     Compare  Sec.  475. 

Sec.  579.     Unless  mistake  be  pleaded  and  proved  each  purchaser 
bound  for  the  whole  commission. 

"Where  a  title  bond  is  executed  to  several  joint  purchasers, 
each  is  bound  for  the  whole  commission  payable  to  one  who 


398  AMERICAN    LAW   KEAL   ESTAIE   AGENCY. 

has  assisted  them  in  making  the  purchase,  unless  a  mistake  in 
the  writing  is  pleaded  and  proved.  Schomberg  v.  Anxier,  101 
Ky.  292,  19  Ky.  L.  R.  548,  40  S.  W.  911;  Clifford  v.  Meyer,  6 
Ind.  App.  633,  34  N.  E.  23. 

Sec.  580.     Notice  immediate'"  terminating  agency  means  in  a 
reasonable  time. 

"Where  the  contract  Avas  that  if  defendant  by  himself  or 
through  any  of  his  agents  sold  the  property,  defendant  was 
to  give  plaintiff  immediate  notice  of  that  fact,  the  meaning, 
taken  in  connection  with  the  admitted  facts,  was  an  actual 
sale  and  binding  agreement  on  the  finding  of  a  purchaser  by 
another  agent  than  plaintiff,  ready,  willing  and  able  to  buy, 
of  which  fact  defendant  had  notice,  immediate  notice  required 
by  the  contract  being  notice  within  a  reasonable  time,  taking 
into  consideration  the  situation  of  the  parties  and  all  the  sur- 
rounding circumstances.  Tnffree  v.  Bienford,  130  Iowa,  532, 
107  N.  W.  425. 

Sec.  581.     Principal  may  remain  neutral  as  to  the  claims  of 

several  brokers. 

"Where  several  brokers  are  openly  employed  to  sell  real 
property,  the  entire  duty  of  the  seller  is  performed  by  remain- 
ing neutral  between  them  and  he  has  a  right  to  make  the  sale 
to  a  buyer  produced  by  any  of  them  without  being  called  upon 
to  decide  between  these  several  brokers  as  to  which  of  them 
was  the  procuring  cause  of  the  purchase.  Vreeland  v.  Vatter- 
lein,  33  N.  J.  L.  247,  criticizing  Eggleston  v,  Austin,  27  Kan. 
245;  Scott  V.  Lloyd,  19  Colo.  401,  35  P.  733;  Witherhee  v. 
Walker,  42  Colo.  1,  93  P.  1118;  Dreyer  v.  Ranch ,  42  How.  Pr. 
(N.  Y.)  22,  3  Daly,  434;  Martin  v.  Billings,  2  City  Ct.  R.  (N. 
Y.)  86 ;  Jennings  v.  Trummer,  96  P.  874,  52  Oregon,  149 ;  Frinck 
V.  Gilbert  ("Wash.  Sup.  '09),  101  P.  1088.  Compare  Sees.  291, 
446. 

"Where  the  owner  lists  property  with  several  brokers  for  sale, 
he  occupies  a  neutral  position,  being  only  int3rested  in  the  re- 
sult, and  can  sell  and  pay  the  commission  to  the  first  broker 
who  presents  a  customer  who  is  ready  and  willing  to  purchase. 
Frink  v.  Gilbert  (Wash.  Sup.  '09),  101  P.  1088. 


PLEADINGS,  PRACTICE,  ETC.  399 

Sec.  582.    A  proposition  is  not  proved  until  inconsistent  with 
the  negative. 

Upon  an  issue  whether  the  owner  of  real  estate  during  the 
continuance  of  an  option  given  upon  it,  offered  to  sell  it  to 
another  party  at  less  than  the  option  price,  a  statement  made 
by  such  party  to  a  witness  that  such  an  oSer  had  been  made 
to  him  is  not  admissible  evidence  against  the  owner;  it  is  mere 
hearsay;  the  fact  that  during  the  continuance  of  th.e  option 
the  owner  bargains  the  property  to  a  third  party,  but  contin- 
gent upon  the  failure  of  the  option  holder  to  comply  wich  the 
terms  of  his  option,  does  not  alone  constitute  a  breach  of  the 
option  by  the  owner;  upon  the  issue  whether  the  owner  dur- 
ing the  continuance  of  the  option  dissuaded  a  possible  customer 
of  the  option  holder  from  purchasing  from  him,  evidence  that 
the  owner  and  the  customer  had  several  interviews,  and,  after 
the  termination  of  the  option,  entered  into  a  contract  rela- 
tive to  the  land,  does  not  alone  prove  dissuasion  by  the  owner; 
the  customer  may  nevertheless  have  first  of  his  own  notion, 
abandoned  the  option  holder,  and  then  have  sought  to  persuade 
the  reluctant  owner;  the  affirmative  of  such  an  issue  is  not 
sustained  so  long  as  the  evidence  merely  justifies  suspicions  or 
surmises,  or  so  long  as  the  negative  may,  after  all,  be  consistent 
with  the  evidential  facts;  a  proposition  is  not  proved  until  the 
evidence  becomes  inconsistent  with  the  negative.  Smith  v. 
Laivrcnce,  98  ^\e.  92,  06  A.  455. 

Sec.  583.    Parol  contract  entered  into  by  agent  in  his  own  name 
binds  unnamed  principal. 

An  agent  can,  bj'^  parol  contract  entered  into  in  his  own 
name,  bind  a  principal  whose  name  does  not  appear  in  the  in- 
strument executed  in  pursuance  thereof.  So  held,  in  an  action 
by  executors  to  recover  rent  upon  a  lease  not  under  seal,  the 
copy  adduced  being  signed  by  the  lessee  only,  and  the  plain- 
tiffs being  described  therein  as  landlords,  with  the  word  "agents" 
after  their  names.     Nicoll  v.  Burke,  45  N.  Y.  Super.  Ct.  75. 

Sec.  584.     Contract  of  broker  to  share  in  profits  for  making 
sales  not  a  partnership. 
Where  a  real  estate  agent  has  a  written  contract  with  the 
owner  of  land  to  put  it  upon  the  market,  advertise  and  sell  the 


400  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

same,  having  for  his  interest  only  a  share  in  the  surplus  profits 
arising  from  the  proceeds  of  the  sale  of  the  land,  it  is  a  con- 
tract of  agency  and  not  of  partnership.  Durkee  v.  Gunn,  41 
Kan.  496,  21  P.  637;  Hicks  v.  Post,  154  Cal.  22,  96  P.  878. 
Compare  Seattle  Land  Co.  v.  Day,  2  Wash.  451,  27  P.  74. 

Sec.  585.  Contract  to  pay  broker  a  commission  on  withdrawing 
land  from  sale  strictly  construed. 
A  provision  in  a  real  estate  broker's  contract  for  commis- 
sions for  a  sale  of  land,  that  the  owner  might  withdraw  the 
land  from  the  market  or  raise  the  price  on  paying  to  the  bro- 
ker two  per  cent,  of  the  price  stipulated,  is  penal  in  character 
and  must  be  strictly  construed.  Tracey  v.  Abney,  122  Iowa,  306, 
98  N.  W.  121.    Compare  Sees.  132,  552. 

Sec.  586.     In  trying  to  effect  a  sale  of  real  estate  party  has 
the  right  to  extravagantly  extol. 

A  party  in  trying  to  effect  a  sale  has  the  legal  right  to  puff 
the  property  in  the  most  extravagant  manner  and  exalt  its 
value  to  the  highest  point  liis  antagonist's  credulity  will  bear. 
Tuck  V.  Downiny,  76  111.  71. 


CHAPTER  III. 


SECTION. 

587.  Quantum  meruit. 

588.  Broker   has   right   of   action 

against  defaulting  pur- 
chaser for  lost  commis- 
sions. 
5^8a.  T^roker's  right  to  recover 
from  vendee  price  paid  for 
property  purchased  for 
him. 

589.  Xo    right    in    equity    arises 

out  of  a  verbal  contract 
for  the  sale  of  land. 

590.  Statute  of  frauds. 

591.  Real    estate    agent    not    lia- 

ble for  failure  to  remove 
snow  from  sidewalk. 

592.  Seals,  and  t!"  necessity  for 

their  use. 

593.  When     tender     of     written 

agreement  by  purchaser 
not  necessary. 

594.  J]mplryment    of    broker    to 

measure     land     does    not 
sustain    claim    of    broke 
for    selling. 

595.  Where    title    taken    by    bro- 

ker to  land  purchased, 
principal  may  tender 
amount  and  demand  deed. 

596.  When  not  necessary  for  bro- 

ker to  show  vendor  had 
a  clear  title. 

597.  Contract    of    sale    requiring 

owner  to  furnish  ab- 
stract of  title  not  within 
authority  of  broker. 


SECTION. 

598.  A  custom  or  usage  must  le 

general  before  a  court 
will  declare  its  existence 
as  a  matter  of  law. 

599.  Where    a    usage    is    prove'l 

the  law  raises  a  presump- 
tion that  the  agent  con- 
tracted with  reference 
thereto. 

600.  Unconstitutionality   of    stat- 

ute requiring  contract  em- 
ploying broker  to  be  in 
writing. 

601.  Undisclosed    principal. 

602.  Where   broker   must   be    au- 

thorized   in    writing 
602a.  Manner   in   which   contracts 
with   broker   to   sell   land 
should    be    construed. 

603.  Broker  cannot  recover  com- 

missions where  contract 
unenforceable. 

604.  Contract  by  unlicensed  bro- 

ker not  absolutely  void. 

605.  Agreement   to   hire   auction- 

eer to  sell  land  need  not 
be  in  writing. 

606.  Memoranda  held  insufRjieat 

to  meet  the  requirement 
of  the  statute  of  frauds. 

607.  Statute  of   limitations. 

608.  Rival  brokers. 

609.  If  purchaser  willing  to  per- 

form, statute  of  frauds 
not  available  to  defoiit 
broker's    commissions. 

610.  Reasonable     price      inferred 

by  law. 

401 


402 


AMERICAN   LAW   REAL   ESTATE   AGENCY. 


SECTION. 

611.  What  is  a  reasonable  tirne. 

612.  Broker's     employment     con- 

tinues for  reasonable  time. 

613.  Contract   to   pay   $1,000,000 

for  reasonable  time. 

614.  When    reasonable    time    im- 

material. 

615.  In  absence  of  express  agree- 

ment, reasonable  value  of 
services    recoverable. 

616.  Reasonable   compensation. 
'617.     Not    necessary    for    broker 

to  put  defendant  in  de- 
fault before  suing  for 
compensation. 

618.  Ratification    not    shown    by 

acquiescence      without 
knowledge. 
618a.  Reply  of  owner  that  did  not 
constitute  a  ratification. 

619.  Ratification     by     acceptance 

of  ofi'er   to   broker. 


SECTION. 

620.  Ratification  cures  defect  in 

agent's  appointment. 
620a.  Sufficient   allegation   of   rat- 
ification. 

621.  Ratification  by  principal  ex- 

ecuting contract. 

622.  Ratification  by  acceptance  of 

proceeds. 

623.  To  constitute  ratification  of 

act  of  attorney,  knowl- 
edge on  part  of  principal 
immaterial. 

624.  It   is  an   essential   prerequi- 

site to  ratification  that 
principal  had  knowledge 
of  unauthorized  contract. 

625.  Tender  not  necessary  to  en- 

title broker  to  recover  on 
principal  refusing  pur- 
chaser. 


Sec.  587.     Quantum  meruit. 

If  plaintiff  declares  on  an  express  contract,  but  fails  to  prove 
it,  in  most  jurisdictions  he  is  not  entitled  to  recover  on  a  quantum 
meruit.  Emery  v.  Atlanta  R.  E.  Ex.,  88  Ga.  321,  14  S.  E.  556; 
Hammers  v.  Merrick,  42  Kan.  32,  21  P.  783 ;  McDonald  v.  Ort- 
man,  98  Mich.  40,  56  N.  W.  1055;  Thuner  v.  Kanter,  102  Mich. 
59,  60  N.  W.  299 ;  McDonnell  v.  Stevenson,  104  Mo.  App.  191, 
77  S.  W.  766;  VeatcJi  v.  Norman,  109  Mo.  App.  387,  84  S.  W. 
350;  Dorrington  v.  Powell,  52  Neb.  440,  72  N.  W.  587;  Ed- 
wards V.  Goldsmith,  16  Pa.  St.  43;  Thornton  v.  Stevenson  (Tex. 
Civ.  App.  '95),  21  S.  W.  232;  Oliver  v.  Moraw'itz,  95  Wis.  1, 
69  N.  W.  977;  Green  v.  Mules,  30  L.  J.  C.  PI.  (Eng.)  343. 
Compare  Sec.  639. 

It  has  been  held  that  on  a  petition  to  recover  an  alleged 
agreed  compensation  for  services  as  broker,  a  recovery  may 
be  had  on  proof  of  the  reasonable  value  of  the  services,  and 
the  variance  may  be  disregarded  unless  it  appears  that  defend- 
ant was  misled.  Susdorf  v.  Schmidt,  55  N.  Y.  319;  Close  v. 
Brown,  230  111.  228,  82  N.  E.  629;  Gregg  v.  Loomis,  22  Nob. 
174,  34  N.  W.  355. 


PLEADINGS,  PRACTICE,  ETC.  403 

Where  no  agreement  as  to  compensation  was  made  between 
the  owner  of  property  and  the  broker  employed  by  him  to 
make  a  sale  thereof,  the  broker,  on  procuring  a  purchaser,  could 
recover  on  a  quantum  meruit  for  his  services  in  making  the 
sale  at  the  price  he  did,  though  the  principal  had  previously 
revoked  the  agency  by  selling  the  property  without  the  broker's 
knowledge,  and  not  merely  compensation  for  his  services  up 
to  the  time  of  the  revocation  of  the  agency.  Beams  v.  Wilson, 
147  N.  C.  304,  60  S.  E.  1124.    Compare  Sec.  15. 

Under  a  contract  to  make  one  the  sole  agent  to  sell  lots  at 
a  commission  "which  shall  be  in  full  for  any  services  he  may 
render  in  surveying  and  laying  out  the  land,"  the  agent  can 
not,  having  made  no  sales,  recover  on  a  quantum  meruit  for  the 
services.     Gilbert  v.  Judson,  85  Cal.  105. 

Though  a  contract  for  a  broker's  services  is  required  by  the 
Code  to  be  in  Avriting,  subscribed  by  the  party  to  be  charged, 
or  his  agent,  in  order  to  be  valid,  such  fact  does  not  preclude 
a  recovery  on  complete  performance  on  a  quantum  meruit. 
Blankcnship  v.  Decker,  34  Mont.  292,  85  P.  1035.  Ibis  is  a 
departure  from  the  general  rule.  Blair  v.  Aiistin,  71  Neb.  401, 
98  N.  W.  1040;  Rodenbrock  v.  Gross,  74  Neb.  409,  104  N.  W. 
758;  Barney  v.  Lasbury,  76  Neb.  701,  107  N.  W.  989;  Stout  v. 
Humphrey,  69  N.  J.  L.  436,  55  A.  281 ;  Leimbach  v.  Regner,  70 
N.  J.  L.  608,  57  A.  138 ;  Goldstein  v.  Scott,  78  N.  Y.  S.  736, 
76  App.  Div.  78   (N.  J.  Law  applied). 

Defendant  contracted  to  give  plaintiff  the  right  for  sixty 
days  to  sell  its  property  at  not  less  than  a  stated  price,  plain- 
tiff to  have  any  excess.  Plaintiff  transferred  the  option,  and 
the  transferees  secured  a  man  to  look  at  the  property  after 
the  expiration  of  the  option,  but  who  refused  to  buy  at  the 
price  named,  and  on  their  notifying  defendant,  defendant  sold 
to  him  at  a  smaller  price.  Tleld,  that  the  plaintiff  could  not 
recover  on  a  quantum  meruit  for  the  services  rendered,  having 
failed  to  fulfill  the  condition  which  alone  entitled  him  to  pay- 
ment for  his  services.  Johnson  v.  Va.  &  Car.  Lumber  Co.,  163 
F.  249,  89  C.  C.  A.  632;  Smith  v.  Va.  db  Car.  Lumber  Co.,  163 
F.  249,  89  C.  C.  A.  632. 

Where  the  contract  between  the  owner  cf  real  estate  and  a 
broker  employed  to  sell  the  same  is  void  because  not  in  writing 


404  AMERICAN    LAW    KEAI-    ESTATE    AGENCY. 

as  required  by  the  statute,  the  broker  can  not  recover  on  a 
qua)) turn  meruit  for  services  rendered  in  accordance  M'ith  the 
contract,  nor  for  the  value  of  his  time  expended  in  that  behalf. 
Nclsoti  V.  Wchsier,  83  Neb.  169,.  119  N.  W.  256;  Barney  v. 
Lasburij,  76  Neb.  701,  107  N.  W.  989. 

A  petition  alleged  the  employment  of  plaintiff  to  find  a  pur- 
chaser for  land  and  assist  in  effecting  a  sale  for  an  agreed 
compensation,  but  that  after  the  purchaser  had  been  procured, 
and  before  a  sale  was  effected,  the  land  owner  wrongfully  re- 
pudiated the  contract  and  completed  the  sale  to  the  purchaser, 
and  that  the  land  owner  had  died  since  the  sale,  and  that,  by 
reason  of  his  death,  plaintiffs  had  become  incompetent  to  tes- 
tify to  conversations  and  transactions  with  him,  and  therefore 
unable  to  prove  the  contract,  and  that  by  reason  of  the  prem- 
ises had  elected  to  sue  on  a  q)iani)im  mernit  for  the  value  of 
their  services,  instead  of  the  compensation  agreed  on,  states 
a  good  cause  of  action  upon  a  quantum  meruit,  and  is  not  de- 
feated ])ecause  of  the  unnecessary  explanatory  references  to 
the  special  contract,  and  plaintiff's  incapacity  to  establish  their 
claim  thereunder.  Templcton  v.  Biegert  (Kan.  Sup.  '09),  100 
P.  654. 

Sec.  588.  Broker  has  a  right  of  action  against  defaulting 
purchaser  for  lost  commissions. 
A  real  estate  broker  may  sue  the  purchaser  who  employed 
him  and  who  has  refused  to  carry  out  his  contract  with  the 
vendor,  whereby  the  broker  has  lost  his  right  to  a  commission, 
and  this,  although  he  had  agreed  to  look  to  the  vendor  for 
the  commission.  Livcrmore  v.  Crane,  26  Wash.  529,  67  P.  221, 
57  L.  R.  A.  401.     Compare  Sec.  425.    ' 

Sec.  588a.     Broker's  right  to  recover  from  vendee  price  paid 
for  property  purchased  for  him. 

"Where  a  broker  purchases  property,  without  disclosing  the 
name  of  his  principal,  he  becomes  liable  personally  for  the 
price,  and  he  can  collect  such  price  from  his  principal,  unless 
the  latter  can  show  payment  to  the  vendor  or  a  release  from 
the  broker;  and  it  is  immaterial  whether  the  broker  disclosed 
to  the  vendor  that  he  was  acting  as  an  agent  only.  Knapp  v. 
Simon,  96  N.  Y.  S.  284;  Mechem  on  Ag.,  Sec.  653. 


PLEADINGS,  PRACTICE,  ETC.  405 

Sec.  589.    No  right  in  equity  arises  out  of  a  verbal  contract 
for  the  sale  of  land. 

"Where  a  person  assumed,  without  authority,  to  act  as  agent 
for  the  sale  of  real  estate,  and  the  contract  is  merely  verbal, 
the  person  injured  by  relying  on  such  representations  has  no 
remedy  in  equity  against  him  for  damages  on  the  ground  of 
part  performance.  Warr  v.  Jones,  24  Weekly  Rep.  Cas.  (Bng.) 
695. 

Sec.  590.    Statute  of  frauds. 

A  contract  for  the  purchase  or  sale  of  lands  for  another,  not 
being  for  the  sale  of  land  but  for  personal  services,  will  not 
be  offensive  to  the  statute  of  frauds,  because  not  in  writing. 
Ivy  Coal  Co.  v.  Long,  139  Ala.  535,  36  S.  722;  Stephens  v. 
Bailey,  149  Ala.  256,  42  S.  740;  Monroe  v.  Snow,  131  111.  126, 
23  N.  E.  401;  Ward  v.  Laivrence,  79  111.  295;  Fox  v.  Starr, 
106  111.  App.  273;  Collins  v.  Smith,  18  111.  160,  162;  Watson 
V.  Sherman,  84  111.  263,  267;  Fisher  y.  Bell,  91  Ind.  243;  Talbot 
V,  Bowen,  A.  K.  Mar.  (Ky.)  436;  Houston  v.  Boagni,  McGloin 
(La.),  164;  Hamilton  v.  Frothingham,  59  Mich.  253,  26  N.  W. 
486 ;  Waterman  R.  E.  Ex.  v.  Stephens,  71  .Mich.  104,  38  N.  W. 
685;  Hancock  v.  Dodge,  85  Miss.  228,  37  S.  711;  Gwinnup  v. 
Sibert,  106  ]\Io.  App.  709,  80  S.  W.  589;  Riley  v.  Minor,  29 
Mo.  App.  439;  Worrell  v.  Munn,  5  N.  Y.  229;  Wilson  v.  Clark, 
35  Tex.  Civ.  App.  92  79  S.  W.  649;  Yearly  v.  Grigsby,  9  Leigh 
(Va.),  387. 

In  some  States,  by  statute,  a  contract  with  a  broker  to  pur- 
chase or  sell  land,  must  be  in  writing — California,  Indiana, 
Missouri,  Nebraska,  New  Jersey,  New  York,  South  Dakota,  Illi- 
nois, Washington.  Wysing  v.  Sills  (Ind.  App.  '09),  88  N.  E. 
954;  Farland  v.  Boyum  (Wash.  Sup.  '09),  102  P.  34;  3Ic- 
Carthy  v.  Loupe,  62  Cal.  299,  10  P.  C.  L.  J.  562;  Pacific  Land 
&  Trust  Co.  V.  Blochman,  11  P.  C.  L.  J.  24;  Perkins  v.  Cooper 
Cal.  Sup.  '90),  24  P.  377;  Bis.^ell  \.  Terry,  69  111.  184;  Rothwell 
V.  Gib.'ion,  121  Mo.  App.  279,  98  S.  W.  801 ;  Kesner  v.  Miesch, 
204  111.  320,  68  N.  E.  405 ;  Milne  v.  Kleb,  44  N.  J.  Eq.  378,  14 
A.  646,  810;  Finley  v.  Hanley,  121  Mo.  App.  358,  98  S.  W.  803; 
Mendles  v.  Danish,  74  N.  J.  L.  333,  65  A.  888;  BriggsY.  Bounds, 
48  Wash.  579,  94  P.  101 ;  Danielson  v.  Gocbel,  71  Neb.  300,  98 


406  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

N.  W.  819 ;  McGiiry  v.  Satchwefl,  129  Cal.  389,  62  P.  58 ;  Dot- 
son  V.  Toole,  129  Cal.  488,  62  P.  92;  Waiters  v.  Dancey  (S.  D. 
'09),  122  N.  W.  430. 

Where  plaintiff,  at  defendant's  request,  procured  the  title 
to  real  estate,  taking  it  in  his  own  name,  and  afterward  con- 
veyed it  to  defendant,  defendant's  agreement  to  pay  him  for 
his  services  one-half  of  the  sum  for  which  the  real  estate  might 
be  sold,  is  not  Avithin  the  statute  of  frauds.  Huff  v.  Hardwick, 
19  Colo.  App.  416,  75  P.  593. 

A  broker  who  has  made  a  parol  contract  of  sale  of  realty 
can  not,  after  his  principal  has  contracted  to  sell  the  land  to 
another  purchaser  and  has  so  informed  the  broker,  make  such 
a  memorandum  as  will  take  the  case  out  of  the  operation  of  the 
statute  of  frauds.  Elliott  v.  Barrett,  144  Mass.  256,  10  N.  E. 
820. 

Under  Civil  Code,  Sec.  1624,  Sub.  6,  requiring  that  a  bro- 
ker's authorization  to  sell  shall  be  in  writing,  a  memorandum 
of  authority  is  not  fatally  defective  because  it  did  not  recite 
the  terms  of  sale  and  amount  of  payments.  Baird  v.  Loescher, 
(Cal.  App.  '08),  98  P.  40. 

In  an  action  to  recover  commissions  for  selling  realty  owned 
by  defendant  and  K.,  the  plaintiff  alleged  that  in  offering  the 
property  for  sale  defendant  acted  as  agent  for  K.,  and  as  such 
agent  made  an  oral  agreement  to  pay  plaintiff  a  reasonable 
commission  for  selling  the  property.  Civil  Code,  Sec.  1624,  re- 
quires agreements  authorizing  the  sale  of  realty,  or  some  memo- 
randum thereof,  to  be  in  writing  and  signed  by  the  party  to 
be  charged  or  his  agent.  Held,  that,  conceding  that  the  bro- 
ker could  contract  orally  with  another  as  to  the  compensa- 
tion he  was  to  receive  from  the  owner  for  selling  realty,  the 
plaintiff  did  not  allege  any  written  contract  by  defendant  with 
K.,  and  hence  he  was  entitled  to  no  compensation  which  could 
be  the  subject  of  an  oral  contract  with  plaintiff ;  so  that  whether 
the  complaint  charged  defendant  individually  or  as  agent  for 
K.,  the  oral  agreement  with  plaintiff  for  commissions  was  in- 
valid.    Aldi<;  V.  Schleielier,  9  Cal.  App.  372,  99  P.  526. 

The  provisions  of  the  statute  of  frauds  which  require  the 
authority  for  selling  land  as  a  basis  for  a  broker's  commission 
to  be  in  writing,  signed  by  the  owner  or  his  authorized  agent, 


PLEADINGS,  PRACTICE,  ETC.  407 

is  not  complied  with,  where  the  person  who  signed  is  neither 
the  owner  nor  his  authorized  agent.  Ryer  v.  Winter  (N.  J. 
Sup.  '09),  72  A.  84. 

A  declaration  which  sets  out  that  defendant  employed  plain- 
tiff to  sell  real  estate,  and  a  promise  by  the  defendant  to  pay 
for  such  services,  need  not  set  out  that  the  authority  for  selling 
and  the  statement  of  the  rate  of  commissions  were  in  writing, 
as  a  statutory  requirement  to  that  effect  is  a  matter  of  evidence 
only.     Adams  v.  Grady  (N.  J.  Sup.  '09),  72  A.  55. 

Burns'  Annotated  Statutes,  1908,  Sec.  7463,  provides  that 
no  contract  for  the  payment  of  a  commission  to  a  broker  for 
securing  a  purchaser  for  real  estate  shall  be  valid,  unless  in 
writing  signed  by  the  owner.  Held,  that  the  fact  that  a  bro- 
ker has  fully  performed  his  part  of  the  contract  does  not  take 
the  case  out  of  the  statute.  Price  v.  Walker  (Ind.  App.  '09), 
88  N.  E.  78. 

A  contract  whereby  a  broker  was  to  procure  a  purchaser 
for  real  estate  and  also  for  personal  property  was  within  the 
statute.     Price  v.  Walker  (Ind.  App.   '09),  88  N.  E.  78. 

Since  the  statute  renders  invalid  a  contract  for  the  payment 
of  commissions  for  procuring  a  purchaser  for  real  estate,  un- 
less the  contract  be  in  writing,  signed  by  the  owner,  an  oral 
contract  within  the  statute,  though  valid  in  the  State  where 
made,  can  not  be  enforced  in  Indiana.  Price  v.  Walker  (Ind. 
App.  '09),  88  N.  E.  78. 

Though  the  statute  provides  that  any  agreement  authorizing 
an  employe  as  an  agent  or  broker  to  sell  or  purchase  real  es- 
tate for  a  commission  shall  be  void  unless  the  agreement  or 
promise,  or  some  note  or  memorandum  thereof,  be  in  writing, 
where  the  broker  sells  the  land  under  an  oral  agreement  au- 
thorizing the  service,  the  moral  obligation  of  the  owner  to  pay 
for  the  services  is  sufficient  to  sustain  a  subsequent  written 
agreement  to  pay  therefor.  Muir  v.  Kane  (Wash.  Sup.  '09), 
104  P.  153. 

A  modification  of  a  written  contract  employing  a  broker 
to  procure  a  purchaser  of  real  estate  for  .$5,000,  at  a  commis- 
sion of  five  per  cent.,  by  authorizing  the  broker  to  sell  for  $4,500 
is  material,  and  under  Burns'  Ann.  Stat.,  1908,  Sec.  7463, 
providing  that  no  contract  for  the  payment  of  commissions  for 


408  AMERICAN    LAW   KEAL   ESTATE   AGENCY. 

procuring  a  purchaser  shall  be  valid  unless  the  same  is  in  writ- 
ing, signed  by  the  owner,  an  action  does  not  lie  on  the  altered 
contract  unless  the  alteration  is  evidenced,  by  a  writing  signed 
by  the  owner.  Wellinger  v.  Crawford  (Ind.  App.  '09),  89  N. 
E.  892. 

Under  a  statute  proA'iding  that  any  agreement  authorizing  a 
broker  to  sell  or  purchase  real  estate  for  commissions  shall  be 
void  unless  the  agreement^  or  some  memorandum  thereof  is  in 
writing  signed  by  the  parties  to  be  charged  therewith,  a  memo- 
randum which  authorizes  no  broker,  describes  no  real  estate, 
contains  no  agreement  for  the  payment  of  commissions,  and 
is  not  signed  by  the  parties,  is  insufficient.  Swartswood  v. 
Naslin  (Wash.  Sup.  '10>,  106  P.  770. 

An  agreement  by  a  broker  to  give  a  purchaser  of  land  his 
commissions  is  not  within  the  statute  of  frauds.  Spengeman 
V.  Palestine  Bdg.  Ass'n,  60  N.  J.  L.  357,  37  A.  723.  An  agent 
who  has  invested  his  principal's  money  in  land  and  taken  the 
title  in  his  own  name,  will  not  be  allowed  to  set  up  the  statute 
of  frauds  against  the  enforcement  of  the  trust,  on  the  ground 
that  the  agency  was  without  written  authority.  Firestone  v. 
Firestone,  49  Ala.  128;  Lopsed  v.  Fritz,  91  N.  Y.  S.  5,  45  Misc. 
620.  A  memorandum  signed  by  the  auctioneer  selling  real  es- 
tate, describing  the  land  sold  and  stating  the  terms  of  sale, 
binds  both  buyer  and  seller,  and  is  a  compliance  with  the  stat- 
ute of  frauds.     Garth  v.  Davis,  27  Ky.  L.  R.  505,  85  S.  W.  692. 

Sec.  591.    Real  estate  agent  not  liable  for  failure  to  remove 
snow  from  sidewalk. 

Real  estate  agents,  whose  agency  is  restricted  to  the  collec- 
tion of  rents  of  property  or  the  soliciting  and  submission  of 
offers  to  purchase,  are  not  within  the  meaning  of  an  act  of 
Congress  requiring  the  owner,  agent  or  tenant  of  real  estate 
within  the  district  to  remove  snoAV  and  ice  from  paving  side- 
walks in  front  of  their  property,  and  are  therefore  not  liable 
to  the  penalties  of  feat  statute.  Tloltzman  v.  U.  S.,  14  App. 
(D.  C.)  454. 

Sec.  592.     Seals,  and  the  necessity  for  their  use. 

A  real  estate  agent  -whose  authority  is  first  put  in  writing 
in  a  contract  for  a  sale  between  the  vendor  and  vendee    which 


PLEADINGS,  PRACTICE,  ETC.  409 

is  not  under  seal,  can  not  recover  commissions  for  the  sale. 
Alpern  v.  Klein  (N.  J.  Sup.  '08),  68  A.  799. 

It  requires  an  instrument  under  seal  to  ratify  the  unauthor- 
ized deed  of  an  agent.  Spofford  v.  Hohhs,  29  JNIe.  148;  Drum- 
right  V.  Philpot,  16  Ga.  424;  Reese  v.  Medlock,  27  Tex.  120. 

Where  the  act  of  the  principal  is  required  to  be  done  in  the 
name  of  the  principal,  the  authority  to  do  the  act  must  be 
conferred  by  an  instrument  under  seal.  Mitchell  v.  Sproid,  5 
J.  J.  Marsh.  (Ky.)  264;  Clark  v.  Graham,  6  Wheat.  (U.  S.) 
577 ;  Butterfield  v.  Beall,  3  Tnd.  203. 

In  Illinois  a  power  of  attorney  not  under  seal  will  be  suffi- 
cient to  authorize  the  attorney  to  sell  land,  but  not  to  make 
a  conveyance.  Watson  v,  Sherman,  84  111.  263,  267.  See  also 
Sec.  57. 

Sec.  593.    When  tender  of  written  agreement  by  purchaser  not 
necessary. 

The  broker  is  not  obliged  to  cause  the  party  willing  to  pur- 
chase to  tender  to  the  seller  a  written  agreement  to  that  effect. 
Cook  V.  Kroemeke,  4  Daly  (N.  Y.),  268. 

Sec.  594.  Employment  of  broker  to  measure  land  does  not  sus- 
tain claim  of  broker  for  selling. 
Evidence  that  testator  employed  claimant,  a  real  estate  bro- 
ker, to  procure  persons  to  go  on  certain  premises,  measure 
them  and  look  at  them,  for  the  purpose  of  inducing  the  tenant 
to  believe  that  they  intended  to  purchase,  does  not  support  a 
vei"ified  claim  for  commissions  on  a  sale  of  the  house  for  tes- 
tator.   Von  Hermanni  v.  Wagner,  30  N.  Y.  S.  991,  81  Hun,  431. 

Sec.  595.    Where  title  taken  by  broker  to  land  purchased,  prin- 
cipal may  tender  amount  and  demand  deed. 

Where  a  broker  acting  for  his  principal  has  taken  the  title 
to  land  purchased  in  his  own  name,  the  principal,  on  tendering 
the  amount  paid  for  the  land  and  an  amount  sufficient  to  com- 
pensate the  agent  for  his  services,  and  a  deed  for  him  to  exe- 
cute and  demand  execution  thereof,  the  agent  refusing,  may 
recover  the  land  in  ejectment.  Rose  v.  Ilayden,  35  Kan.  106. 
Contra,  Burden  v.  Sheridan,  36  Iowa,  125;  Dorsey  v.  Clarke 
4  Harr.  &  J.  (Md.)  551. 


410  AMERICAN   LAW   REA.L   ESTATE   AGENCY 

Sec.  596.    When  not  necessary  for  broker  to  show  vendor  had  a 
clear  title. 

Where  defendant  did  not  base  his  refusal  to  carry  out  an 
agreement  to  purchase  property  upon  any  invalidity  of  the 
owner's  title,  it  was  not  necessary  for  the  broker,  in  suing  for 
the  commissions  for  negotiating  the  purchase,  to  show  that  the 
title  was  clear.    Hanna  v.  Espalla,  148  Ala.  313,  42  S.  443. 

Sec.   597.     Contract  of  sale  requiring  owner  to  furnish  ab- 
stract of  title  not  within  authority  of  broker. 

Wliere,  in  an  action  by  a  broker  for  commissions  in  procuring 
a  purchaser  for  a  tract  of  land,  it  appeared  that  the  contract 
of  employment  only  fixed  the  price,  and  that  the  broker  exe- 
cuted a  contract  of  sale  binding  the  owner  to  furnish  an  ab- 
stract of  title,  an  instruction  that  if  the  owner  entered  into 
the  contract  by  which  he  authorized  the  broker  to  sell  the  land 
at  the  price  named,  and  the  broker  entered  into  a  contract  for 
the  sale  thereof  at  the  price  named,  to  a  person  ready,  able 
and  willing  to  pay  therefor,  he  was  entitled  to  his  commissions, 
was  erroneous,  on  the  issue  whether  the  sale  made  by  the  bro- 
ker was  on  the  terms  on  which  he  was  authorized  to  effect  a 
sale.  Hunt  v.  Tuttle,  133  Iowa,  647,  110  N.  W.  1026.  See  ref- 
erences under  Sec.  307. 

Sec.  598.  A  custom  of  usage  must  be  general  before  a  court 
will  declare  its  existence  as  a  matter  of  law. 
The  existence  of  a  custom  or  usage  to  the  effect  that  the 
broker  shall  be  entitled  to  commissions  in  the  event  that  his 
principal  declines  to  complete  the  transaction  negotiated,  will 
not  be  declared  by  the  court  as  a  matter  of  law,  unless  it  is 
notorious  and  universal.  Durkee  v.  Vermont  Cen.  B.  Co.,  29 
Vt.  127. 

Sec.  599.    Where  a  usage  is  proved,  the  law  raises  a  presump- 
tion that  the  agent  contracted  with  reference  thereto. 

Where  the  evidence  adduced  is  sufficient  to  provo  that  the 
usage  among  real  estate  agents  is  general,  the  law  raises  a  pre- 
sumption that  the  agent  knew  the  usage  and  contracted  with 
reference  to  it.  Cameron  v.  McNair,  76  Mo.  App.  366.  See 
also  Sec.  626. 


PLEADINGS,  PRACTICE,  ETC.  411 

Sec.  600.    Unconstitutionality  of  statute  requiring  contract  em- 
ploying broker  to  be  in  writing. 

Penal  Code  providing  that  in  cities  of  the  first  and  second 
class  any  person  offering  for  sale  real  property  without  writ- 
ten authority  shall  be  guilty  of  a  misdemeanor,  is  unconsti- 
tutional, as  improperly  abridging  the  rights  and  privileges  of 
citizens  of  one  portion  of  the  State  with  respect  to  a  matter 
of  contracts.  Cody  v.  Dempsey,  83  N.  Y.  S.  899,  86  App.  Div. 
335;  Grossmnnn  v.  Cominez,  79  N,  Y.  S.  900,  79  App.  Div.  15. 
Statutes  requiring  such  contracts  to  be  in  writing,  in  other 
States  upheld.  Baker  v.  GiUan,  68  Neb.,  368,  94  N.  W.  615; 
City  of  St.  Louis  v.  McCann,  157  Mo.  301,  57  S.  W.  1016. 

Sec.  601.    Undisclosed  principal. 

Plaintiffs,  as  brokers,  entered  into  a  contract  for  the  pur- 
chase from  defendant  of  certain  bonds,  claiming  to  act  for  an 
undisclosed  principal  and  stipulating  that  they  should  in  no 
manner  be  held  liable  on  the  contract  which,  as  they  had  rea- 
son to  believe,  was  made  by  defendant  under  a  misapprehension 
as  to  the  value  of  the  bonds ;  in  fact,  they  were  acting  for  them- 
selves, and  there  was  no  other  principal.  Held,  that  they  could 
not  maintain  an  action  on  the  contract;  not  as  agents  for  an 
undisclosed  principal,  because  no  such  principal  existed,  nor 
as  principals,  l)ecause  by  their  fraudulent  misrepresentations 
they  had  secured  immunity  from  liability  on  the  contract  as 
such,  and  estopped  themselves  from  claiming  rights  which  were 
correlative  with  such  liability.  Paine  v.  Loeh,  96  Fed.  164,  37 
C.  C.  A.  434. 

Defendant  agreed  to  furnish  to  a  broker  a  certain  amount  of 
money  to  be  used  in  the  purchase  of  a  mine  which  was  to  be 
conveyed  to  a  corporation  to  be  formed,  in  which  defendant 
was  to  have  a  certain  share  of  the  stock,  the  money  advanced 
to  be  repaid  to  him  from  the  profits ;  the  broker  purchased  the 
mine,  in  accordance  with  the  agreement,  making  a  cash  pay- 
ment thereon,  which  was  furnished  by  defendant,  and  executed 
his  own  notes  for  the  deferred  payments,  defendant  not  being 
known  in  the  transaction  with  the  seller.  Held,  that  the  bro- 
ker   and  not  the  defendant  was  the  purchaser,  and  that  de- 


412  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

fendant  could  not  be  held  liable  on  the  note  as  an  undisclosed 
principal.  Krohn  v.  Lamhclh,  114  Cal.  302,  46  P.  164.  Com- 
pare Harper  v.  Nat.  Bank,  54  0.  S.  425. 

One  acting  as  agent  of  an  undisclosed  principal  may  be 
treated  as  the  principal  by  the  party  with  whom  he  deals. 
Welch  V.  Goodwin,  123  Mass.  71 ;  Pentz  v.  Stanton,  10  Wend. 
271 ;  Bickford  v.  First  Nat.  Bk.,  42  111.  238 ;  Baldwin  v.  Leon- 
ard, 39  Vt.  260;  Lawler  v.  Armstrong  (Wash.  '09),  102  P.  775. 

Where  the  real  party  in  interest  is  not  disclosed  to  the  ven- 
dor, the  broker  should  not  be  allowed  to  prevail,  on  the  theory 
that  he  has  produced  the  agent  of  an  undisclosed  principal. 
Mott  V.  Minor   (Cal.  App.    '09),  106  P.  244. 

Sec.  602.  Where  broker  must  be  authorized  in  writing,  con- 
tract without  unenforceable. 

Revised  Statutes,  1899,  Sec.  3418,  providing  that  no  eon- 
tract  for  the  sale  of  lands  made  by  an  agent  shall  be  binding 
on  the  principal  unless  the  agent  is  authorized  in  writing  to 
make  such  contract,  Held,  that  where  the  employment  of  the 
l)roker  was  not  evidenced  by  the  written  consent  of  the  land 
owner,  a  written  contract  to  sell  the  same  by  the  broker  with 
a  purchaser  was  unenforceable  against  the  land  owner.  Young 
V.  BuJuvedel,  119  Mo.  App.  231,  96  S.  W.  228.    See  also  Sec.  433. 

Sec.  602a.  Manner  in  which  written  contracts  with  real  estate 
brokers  employed  to  sell  real  estate  should  be  construed 
and  enforced. 

Laws  of  1905,  p.  110,  c.  58,  requiring  an  agreement  emx>loy- 
ing  a  real  estate  broker  to  be  written,  should  be  enforced  as 
designed  to  prevent  vendors  and  purchasere  from  being  de- 
frauded by  brokers  wrongfully  claiming  commissions,  but  not 
in  such  manner  as  to  defraud  brokers.  McCree  v.  Ogden,  50 
Wash.  495,  97  P.  503,  three  judges  dissenting. 

Sec.  603.  Broker  can  not  recover  commissions  where  contract 
unenforceable. 

A  real  estate  agent  can  not  base  a  claim  for  commissions  on 
a  contract  of  sale  which   because  of  its  incompleteness,  can  not 


i'LEADINGS,  PRACTICE,  ETC.  413 

be  enforced.     Bradford  v.   Menard,  35  Minn.   197;  Mason  v. 
Small,  130  Mo.  App.  249,  109  S.  W.  822.     See  also  Sec.  209. 

Sec.  604.     Contract  by  unlicensed  broker  not  absolutely  void. 

Under  the  Code  requiring  a  license  to  practice  the  business 
of  a  broker,  and  imposing  a  penalty  for  the  violation  thereof, 
a  contract  of  an  unlicensed  real  estate  broker  to  sell  real  es- 
tate for  another  is  not  absolutely  void.  Cohb  v.  Dunlevie,  63 
W.  Va.,  398,  60  S.  E.  384;  Smith  v.  Sharp  (Ala.  Sup.  '09),  50 
S.  381.    See  also  Sec.  576. 

Sec.  605.    Agreement  to  hire  auctioneer  to  sell  land  need  not 
be  in  writing. 

Plaintiff  was  employed  by  defendant  to  advertise  property 
for  sale  at  auction,  and  secured  an  auctioneer  and  took  charge 
of  the  sale ;  after  plaintiff  had  advertised  the  property  and 
secured  an  auctioneer,  but  before  the  day  of  sale,  defendant 
sold  the  property  privately,  and  thereupon  agreed  with  plain- 
tiff to  pay  him  two  per  cent,  of  the  price  for  what  he  had  done. 
Held,  that  the  agreement  was  not  within  the  statute  which  re- 
quires a  writing  to  entitle  brokers  to  commissions  for  selling 
real  estate,  and  is  valid.  Griffith  v.  Daly,  56  N.  J.  Law,  466, 
29  A.  169. 

Sec.  606.    Memoranda  held  insufficient  to  meet  the  requirements 
of  the  statute  of  frauds. 

Ballinger's  Acts  and  Statutes,  Sec.  4576,  provides  that  an 
agreement  authorizing  or  employing  a  broker  to  sell  or  pur- 
chase real  estate  for  compensation  or  commission  shall  be  void 
unless  the  contract  or  some  note  or  memorandum  thereof  be 
in  writing,  signed  by  the  party  to  be  charged ;  in  an  action 
by  a  broker  he  relied  on  a  memorandum  addressed  to  himself 
reading:  "Enclosed  find  contract  which  S.  wishes  signed  by 
F.  and  confirmed  by  R.  Advise  us  when  abstract  is  ready," 
and  signed  by  one  of  the  defendants,  S.  being  the  other  de- 
fendant; F.  having  represented  the  owner  of  the  land  and  R. 
being  the  owner,  and  the  abstract  being  an  abstract  of  title  to 
the  land.  Held,  that  the  memorandum  was  insufficient  under 
the  statute.    Keith  v.  Smith,  46  Wash.  131,  89  P.  473;  McCrea 


414  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

V.  Ogden  (Wash.  Sup.  '09^,  103  P.  788;  Mendenhall  v.  Rose 
(Sup.  Ct  Cal.  '93^,  33  P.  884;  Phillips  v.  Jones,  39  Ind.  App. 
626,  SO  N.  E.  555. 

Sec.  607.     Statute  of  limitations. 

Where  a  broker  sold  certain  property  under  a  contract  by 
which  the  purchaser  leased  the  same  for  a  term  of  years  with 
an  option  to  purchase,  which  option  was  exercised  December 
31,  1902,  the  broker's  right  to  commissions  did  not  accrue  until 
that  time,  and  was  not  barred  by  the  three  years'  statute  prior 
to  the  commencement  of  the  action  to  recover  the  same  on  June 
27,  1904.     Coates  v.  Locust  Point  Co.,  102  Md.  291,  62  A.  625. 

If  a  broker  having  charge  of  the  property  of  a  syndicate 
makes  a  contract  of  sale  of  lots  to  a  nominal  purchaser  to  show 
business,  and  such  purchaser  assigns  to  a  })ona  fide  purchaser 
who  completes  the  sale,  the  statute  of  limitations  will  run 
against  the  broker's  claim  for  commissions  as  of  the  date  of 
the  bona  fide  sale,  and  not  of  the  nominal  one.  Ross  v.  Fick- 
ling,  11  App.  Cas.   (D.  C.)   442. 

An  action  against  real  estate  brokers  for  deceit  in  selling 
land  is  governed  by  the  statute  requiring  actions  for  debt  not 
evidenced  by  a  written  contract,  to  be  brought  within  two  years. 
Gordon  v.  Rhodes  (Tex.  Civ.  App.  '09),  116  S.  W.  40. 

A  right  of  action  by  an  agent  against  his  principal  for  reim- 
bursement for  money  paid  out  in  defending  a  suit  for  breach 
of  warranty  of  land  sold  at  the  principal's  request,  would  not 
arise  until  the  agent  paid  the  judgment  against  himself,  so 
that  an  action  brought  Avithin  six  months  thereafter  would 
not  be  barred  by  limitations,  and  limitations  would  not  begin 
tt)  run  to  bar  recovery  of  the  expenses  of  defending  the  suit 
until  the  last  item  was  paid,  as  in  the  case  of  a  running  account. 
Shearer  v.  Guardian  Trust  Co.  (Mo.  App.  '09),  116  S.  W.  456. 

A  purchaser  was  induced  by  fraudulent  representations  of 
the  broker  of  the  vendor  to  purchase  land  for  $12,500,  $5,000 
of  which  was  to  be  in  cash,  and  the  balance  in  notes.  The  pur- 
chaser paid  to  the  vendor  $2,500  of  cash,  and  it  was  under- 
stood that  $2,527  should  be  paid  by  the  broker  to  the  owner 
on  the  purchaser's  account.  Payment  Avas  not  made,  and  the 
purchaser  did  not  discover  the  fact  until  four  years  and  ten 


PLEADINGS,   PRACTICE,   ETC.  41.5 

months  had  elapsed.  Held,  that  the  right  of  the  purchaser  to 
recover  from  the  broker  as  for  deceit  was  barred  by  the  four 
years'  statute  of  limitations.  Gordon  v.  Rhodes  (Tex.  Civ.  App. 
'09),  117  S.  W.  1023,  certified  questions  answered,  116  S.  W.  40. 

Sec.  608.     Rival  brokers. 

One  of  several  independent  brokers  employed  to  procure  a 
purchaser  must  produce  a  customer  of  his  own,  and  not  one 
then  sustaining  that  relation  to  another  of  the  brokers,  and 
when  he  is  first  in  negotiating  with  a  customer  he  will  con- 
tinue to  sustain  that  relation  until  it  is  expressly  broken  off 
or  the  matter  of  the  purchase  has  ceased  to  be  held  under  con- 
sideration by  the  purchaser.  Jennings  v.  Trummer,  52  Oregon, 
149,  96  P.  874. 

Sec.  609.    If  purchaser  willing  to  perform,  statute  of  frauds 
not  available  to  defeat  broker's  commissions. 

A  real  estate  broker,  in  order  to  recover  commissions,  must 
show  either  a  consummation  of  the  sale  or  the  obtaining  of 
a  purchaser;  the  mere  fact,  however,  that  the  contract  was 
within  the  statute  of  frauds  does  not  preclude  a  recovery  for 
commissions,  if  a  willingness  to  perform  the  same  is  shown. 
Carter  v.  Simpson,  180  111.  App.  328 ;  McKenna  v.  Harvie,  38 
Minn.  18,  35  N.  W.  668.  This  is  true  also  in  the  case  of  a  con- 
tract to  exchange  properties.  Schulte  v.  Meehan,  133  111.  App. 
491. 

Sec.  610.    Reasonable  price  inferred  by  law. 

"Where  a  contract  for  the  sale  of  land  between  the  owner 
and  a  couple  of  real  estate  agents  provides  that  the  owner 
shall  fix  its  selling  price,  the  law  infers  that  it  shall  fix  a  rea- 
sonable price,  and  that  the  sale  shall  be  made  within  a  rea- 
sonable time.     Tinsley  v.  Durfey,  99  111.  App.  239. 

Sec.  611.    What  is  a  reasonable  time  must  be  determined  by  the 

facts  and  circumstances  in  each  case. 

In   determining   what   constitutes   a   reasonable   time   within 

which  a  real  estate  broker  employed  to  procure  a  purchaser  for 

a  farm  must  procure  a  purchaser  in  order  to  be  entitled  to  his 


416  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

commissions,  the  facts  and  circumstances  must  be  considered. 
Sallce  V.  McMurtrij,  133  Mo.  App.  253,  88  S.  W.  157 ;  Geiger  v. 
Riser  (Colo.  Sup.  MO),  107  P.  267.     See  also  Sec.  612. 

Where  an  owner  of  premises  agreed  in  September  to  extend 
the  time  within  Avhich  a  broker  might  sell  to  such  time  as  he 
could  get  the  prospective  purchaser  to  bind  itself  to  buy,  and 
it  was  contemplated  that  the  broker  was  to  have  until  some 
time  after  the  beginning  of  the  year  to  make  the  sale,  and  the 
sale  was,  in  fact,  closed  in  April,  active  negotiations  having 
been  kept  up  all  the  time  with  the  prospect  of  eventual  success, 
the  delay  in  closing  the  sale  was  not  unreasonable,  and  did  not, 
on  that  ground,  authorize  the  revocation  of  the  broker's  au- 
thority without  his  consent.  Luhn  v.  Fortran  (Tex.  Civ.  App. 
'09),  115  S.  W.  667.     Writ  of  error  denied  by  Supreme  Court. 

Sec.  612.  Broker's  employment  continues  for  a  reasonable  time. 
Where,  at  the  time  a  broker  was  employed  to  sell  real  estate, 
no  period  was  agreed  on  during  which  the  agency  should  con- 
tinue, it  continued  for  a  reasonable  time  after  the  employment, 
in  view  of  all  the  circumstances.  Staehlin  v.  Kramer,  118  Mo. 
App.  329,  94  S.  W.  785 ;  Sallce  v.  McMurtrij,  113  Mo.  App.  253, 
88  S.  W.  157;  Morgan  v.  Keller,  194  Mo.  663,  92  S.  W.  75; 
Hanna  v.  Espalla,  148  Ala.  313,  42  S.  443;  Turner  v.  Snyder, 
132  Mo.  App.  320,  111  S.  W.  858;  Geiger  v.  Riser  (Colo.  Sup. 
'10),  107  P.  267.     Compare  Sees.  614,  620. 

Sec.  613.     Contract  to  pay  plaintiff  $1,000,000  if  defendant 
bought  railroad  bound  him  only  for  a  reasonable  time. 

Where  plaintiff  alleged  that  defendant  agreed  to  pay  him 
$1,000,000  for  information  and  services  relating  to  the  pros- 
pective purchase  of  a  railroad,  in  case  the  defendant  purchased 
the  same  or  became  interested  in  its  purchase  wdth  others, 
such  contract  could  not  be  construed  to  restrain  defendant 
from  becoming  interested  in  the  purchase  of  such  railroad  for 
all  time,  on  pain  of  being  liable  on  the  contract,  but  only 
bound  him  not  to  participate  in  the  purchase  for  a  reason- 
able time  unless  he  paid  plaintiff  for  his  services.  Mengis  v. 
Fitzgerald,  95  N.  Y.  S.  436,  108  App.  Div.  24;  Dyer  v.  Duffy, 
39  W.  Va.  148,  19  S.  E.  540,  24  L.  R.  A.  339. 


PLEADINGS,  PRACTICE,  ETC.  417 

Sec.  614.  Reasonable  time  immaterial  where  broker  finds  pur- 
chaser while  employed. 
Where  a  broker  finds  a  purchaser  at  the  seller's  terms  while 
still  employed,  the  reasonableness  of  the  time  which  he  has 
taken  to  do  so  is  immaterial.  Moore  v.  Boehm,  91  N.  Y.  S. 
125,  45  ^lisc.  622.     See  also  Sec.  628.     Compare  Sec.  612. 

Sec.  615.     In  the  absence  of  an  express  agreement  the  reason- 
able value  of  the  services  may  be  recovered  by  broker. 

Where  a  real  estate  agent  renders  services  in  procuring  a 
purchaser  for  land,  with  the  owner's  consent  but  without  any 
agreement  for  the  payment  of  a  certain  sum  for  such  services, 
the  agent  is  entitled  to  recover  the  reasonable  value  of  the 
services.  Stephens  v.  Tomlinson,  etc.  (Tex.  Civ.  App.  '05),  88 
S.  W.  804;  HaivJcins  v.  Chandler,  8  Houst.  (Del.)  434,  32  A. 
464 ;  Blester  v.  Evans,  59  111.  App.  1 81 ;  New  Kanawha  C.  t& 
M.  Co.  V.  Wright,  163  Ind.  529,  72  N.  E.  550;  Carruthers  v. 
Towne,  86  Iowa,  318,  53  N.  W.  240;  Holies  v.  Weston,  156 
Mass.  357,  31  N.  E.  483;  Boardman  v.  Hanks,  185  Mass.  555, 
70  N.  E.  1012;  Baer  v.  Koch,  21  N.  Y.  S.  974,  2  Misc.  334; 
Donald  v.  Laivson,  87  N.  Y.  S.  485;  Lansing  v.  Johnson,  18 
Neb.  174,  24  N.  W.  726;  McMurtry  v.  Madison,  18  Neb.  291, 
25  N.  W.  85 ;  Harrell  v.  Zimpleman,  66  Tex.  292,  17  S.  W.  478 ; 
Alexander  v.  Wakefield  (Tex.  Civ.  App.  '02),  69  S.  W.  77. 

Sec.  616.    Reasonable  compensation. 

What  is  a  fair  and  reasonable  compensation  depends  upon 
the  amount  allowed  for  such  services  by  custom  or  usage  locally 
prevailing  among  brokers.  Hartman  v.  Warner,  75  Conn.  197, 
52  A.  719;  Williams  v.  Clowes,  75  Conn.  1.55,  52  A.  820;  Semple 
v.  Rand,  112  Iowa,  616,  84  N.  W.  683:  Thomas  v.  Brandt  (Md. 
'93),  26  A.  524;  Graves  v.  Dill,  159  Mass.  74,  34  N.  E.  336; 
Ashhy  V.  Holmes,  68  Mo.  App.  23;  Green  \.  Wright,  36  Mo. 
App.  298;  Lansing  v.  Johnson,  18  Neb.  174,  24  N.  W.  726; 
Potts  V.  Aechtermacht,  93  Pa.  St.  138;  Insloe  v.  Jones,  Brightly 
(Pa.),  76. 

Sec.  617.     Not  necessary  for  broker  to  put  defendant  in  default 
before  suing  for  fees. 
Where,  after  giving  plaintiff  a  power  of  attorney  to  act  as 
agent  for  the  sale  of  defendant's  real  estate,  plaintiff  and  a 


418  AMERICAN    LAW   REAli   ESTATE   AGENCY. 

prospective  buyer  had  started  to  meet  the  defendant  at  the 
property  in  another  State,  and  defendant  put  an  end  to  the 
agency  and  placed  it  out  of  his  power  to  carry  out  the  promise 
of  sale  by  making  a  sale  to  a  third  person,  there  was  no  ne- 
cessity for  plaintiff  to  put  defendant  in  default  before  suing 
for  his  commissions.  Luckett  Land  &  Em.  Co.  v.  Broivn,  118 
La.  943,  43  S.  628. 

Sec.  618.  Ratification  not  shown  by  acquiescence  without 
knowledge. 
In  an  action  by  a  broker  to  recover  commissions  for  making 
a  sale,  defendant's  acquiescence  in  plaintiff's  statement  that 
plaintiff  had  secured  a  loan  for  a  prospective  purchaser  did 
not  fairly  justify  the  conclusion  that  defendant  ratified  the 
agency  claimed  by  plaintiff,  as  no  claim  of  agency  was  sug- 
gested by  plaintiff's  statement.  Tloive  v.  Miller,  23  Ky.  L.  R. 
1610,  66  S.  W.  184.     See  also  Sees.  458,  567. 

Sec.  618a.     Reply  of  owner  which  did  not  amount  to  a  ratifi- 
cation. 

A  contract  of  sale  executed  by  one  having  authority  only 
to  find  a  purchaser,  and  containing  provisions  not  referred  to 
in  his  letter  to  the  owner  that  he  had  an  offer  of  purchase 
on  certain  terms  and  not  known  to  the  owner,  is  not  ratified 
by  his  reply,  '^A11  right,  offer  accepted."  Hardinger  v.  Co- 
lumbia, 50  Wash.  405,  97  P.  445. 

Sec.  619.    Ratification  by  acceptance  of  offer  made  to  broker. 

The  acceptance  by  a  vendor  of  land  of  an  offer  actually  made 
to  a  broker,  and  the  consummation  of  sale  on  such  terms,  is 
a  ratification  of  the  broker's  act,  and  entitles  him  to  his  com- 
missions. Levy  V.  Wolf,  2  Cal.  App.  491,  84  P.  313.  Even 
when  sold  through  another  broker.     Id. 

Sec.  620.    Ratification  cures  defect  in  agent's  appointment. 

An  owner  verbally  authorized  an  agent  to  offer  real  estate 
for  sale;  the  agent,  in  the  name  of  the  principal,  gave  a  broker 
written  authority  to  procure  a  purchaser  for  the  land;  the 
owner  subsequently  ratified  the  agent's  act  by  offering  per- 


PLEADINGS,  PRACTICE,  ETC.  419 

formance  of  the  contract  of  sale  to  tlie  purchaser  procured 
by  the  broker  by  tendering  a  deed  conveying  the  premises. 
Held,  that  the  defect  in  the  appointment  was  cured  by  the 
owner's  acts  constituting  ratification.  Mercantile  Trust  Co.  v. 
Niggeman,  119  Mo.  App.  56,  96  S.  W.  293.  See  also  Sees.  24, 
621,  622. 

Sec.  620a.     Sufficient  allegation  of  ratification. 

In  an  action  for  commissions  claimed  to  have  been  earned 
by  the  purchase  of  land  for  defendant,  where  the  latter  claimed 
that  plaintiff  acted  in  violation  of  his  agency  by  paying  a 
higher  price  per  acre  than  he  was  authorized,  etc.,  allegations 
of  the  complaint  that  plaintiff  notified  defendant  from  time  to 
time  of  the  purchases,  the  purchase  price,  amounts  of  payments, 
etc.,  and  defendant,  knowing  of  the  purchases  and  terms  thereof, 
ratified  them,  as  well  as  the  allegations  of  the  reply  that  the 
payments  of  the  land  in  excess  of  the  prices  thereof  were 
made  with  defendant's  knowledge  and  ratified  by  him,  suffi- 
ciently alleged  ratification.  Malion  v.  Rankin  (Or.  Sup.  '09), 
102  P.  608. 

Sec.   621.    Ratification  of  agent's  appointment  by  principal 
executing  contract  with  purchaser. 

Where  a  contract  to  purchase  land  is  presented  to  the  ven- 
dor, signed  by  the  purchaser,  it  is  for  the  vendor  to  decide 
whether  the  purchase  is  acceptable,  and  if  he  then  executes  the 
contract  himself,  he  ratifies  the  act  of  his  agent  in  having  pre- 
viously, though  unauthorizedly,  so  done,  it  is  binding  on  him. 
Flynn  v.  Jordal,  124  Iowa,  457,  100  N.  W.  326;  Findlay  v. 
Koch,  126  Iowa,  131,  101  N.  W.  766.    See  also  Sees.  24,  620,  622. 

Sec.  622.    Ratification  by  acceptance  of  the  proceeds. 

A  brother  and  sister  were  tenants  in  common  of  a  tract  of 
land,  which  the  principal  employed  an  agent  to  sell ;  the  agent 
procured  a  purchaser  and  wrote  to  the  brother  a  letter  con- 
taining the  terms  of  the  contract  of  sale;  the  brother  showed 
the  letter  to  his  sister,  and  the  brother  subsequently  wired  that 
the  sale  was  accepted;  on  the  death  of  the  brother  the  sister 
wrote  to  the  agent  with  reference  to  the  sale,  and  a  draft  for 


420  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

a  part  payment  was  received  by  her  and  cashed;  she  subse- 
quently orally  agreed  to  a  conveyance  of  the  land  according 
to  the  contract.  Held,  that  she  ratified  the  contract  of  sale. 
Stuart  V.  Mattern,  141  Mich.  686,  105  N.  W.  35,  12  D.  L.  N. 
616.     See  also  Sees.  24,  620,  621. 

Sec.  623.  To  constitute  ratification  of  the  act  of  attorney, 
knowledge  on  part  of  principal  immaterial. 
Where  one  authorizes  an  attorney  in  fact,  by  power  duly 
signed  and  acknowledged,  to  make  a  certain  contract  for  the 
purchase  of  land  with  certain  parties,  and  of  a  certain  date, 
and  subsequently  ratifies  the  act  of  his  attorney,  it  is  imma- 
terial whether  he  knew  all  the  terms  and  conditions  of  the 
contract  at  the  time  it  was  made,  and  he  M'ill,  be  bound  by  the 
contract  made  by  such  attorney.  Rank  v.  Garvey,  66  Neb. 
767,  92  N.  W.  1025,  99  N.  \Y.  666. 

Sec.  624.     It  is  an  essential  prerequisite  to  ratification  that 
the  principal  had  knowledge  of  unauthorized  contract. 

A  signature  to  an  agreement  for  the  sale  of  land  made  for 
another  without  authority,  may  be  by  him  adopted  and  rati- 
fied so  as  to  be  of  the  same  force  as  if  made  by  authority  ante- 
cedently givfen,  and  such  ratification  may  be  inferred  from  cir- 
cumstances, but  knowledge  that  there  was  such  an  agreement 
signed  for  him  is  an  essential  prerequisite  to  proof  of  his  rati- 
fication. O'Reilly  v.  Keim,  54  N.  J.  Eq.  418,  34  A.  1073.  See 
also  Sec.  24. 

Sec.  625.     Tender  not  necessary  to  entitle  broker  to  recover 

on  principal's  refusing  purchaser. 

Where  a  broker  obtained  a  purchaser  who  in  good  faith 
offered  to  buy  at  defendant's  price,  a  formal  tender  of  the 
price  was  not  necessary  until  defendant  evinced  some  dispo- 
sition to  accept  it,  in  order  to  entitle  the  broker  to  commissions. 
Carlin  v.  Lifur,  2  Cal.  App.  590,  84  P.  292.  Nor  to  bring 
the  purchaser  into  the  o^vner's  presence.  Getzelsohn  v.  Don- 
nelly, 98  N.  Y.  S.  213,  50  Misc.  164.  The  refusal  by  the  owner 
to  accept  the  offer  was  a  waiver  of  tender.  McDermott  v. 
Mahoney,  115  N.  W.  32,  139  Iowa,  292,  106  N.  W.  925;  Moore 
v.  Boehm,  91  N.  Y.  S.  125.  45  Misc.  622. 


CHAPTEE  IV. 


SECTION. 

626.  Custom  or  usage. 

626a.  Custom  insufficient  to  sup- 
ply lack  of  employment 
as  broker. 

627.  Defendant      cannot      object 

where  evidence  shows  sale 
for  less  than  broker 
claims. 

628.  Presumptions. 

629.  Assumpsit. 

630.  Actions    l)etween    principals 

and  agents. 

631.  Common   counts. 

632.  Petition,       ultimate       facts 

must  be  pleaded. 
632a.  Petition  in  action  to  recover 

commissions. 
632b.  When    right    of    action    for 

commissions     accrues     to 

broker. 

633.  Petition   alleging   failure   to 

exchange  defective. 

634.  Petition    alleging     sales    to 

persons  defective. 

635.  Petition     alleging     deed     of 

trust  not  defective. 
635a.  Complaint  not  objectionable 
for   failing   to   show   that 
plaintiff     foimd     a     pur- 
chaser on  terms  oflered. 

636.  Petition    that    brokers    have 

over  certain  sum  when 
not  broached. 

637.  Petition  on  express  contract 

may   recover,    when. 
637a.  Necessary     allegations     and 
proof  to  enable  broker  to 
recover    commissions    for 
effecting  sale  or  exchange. 


SECTION. 

637  b.  Petition  sufficiently  setting 
out  contract  with  firm  of 
real  estate  broker  to  sell 
land. 

638.  Cannot  recover  on  proof  of 

substituted   contract. 

639.  Failing  to  prove  agreed  may 

recover  reasonable. 

640.  Petition    good    against    de- 

murrer. 
640a.  Petition  for  commissions  not 
demurrable  for  failing  to 
allege  customer  ready, 
able  and  willing  to  pur- 
chase. 

641.  When    agent     may     recover 

without  showing  perform- 
j  ance. 

642.  To     recover     money     broker 

refuses  to  pay,  need  not 
allege  he  had  authority  to 
collect. 

642a.  Broker  not  liable  to  prin- 
cipal for  money  refunded 
on    rejected   contract. 

642b.  Broker  receiving  money  for 
his  principal  not  liable  to 
repay  on  suit  by  party 
entitled    thereto. 

642c.  Circumstances  under  which 
party  entitled  to  money 
may  sue  agent  for  its  re- 
covery. 

643.  Alleging  sale  by  owner  end- 

ing   contract    demurrable. 

644.  Alleging    notice    of    double 

employment  not  demurra- 
ble. 

421 


422  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

SECTION.  SECTION. 

645.  Bringing  parties  into  toucli       652.     Petition      for      commissions 

insufficient.  for    selling    bonds    defec- 

646.  Alleging  defendant  accepted  tive. 

services    when   good.  653.     Out    of    last    cash    payment 

647.  Failing  to  show  written  con-  must  aver  such  payment. 

tract,   rest   immaterial.  654.     Kot  alleging  agreement  stat- 

648.  Incomplete     copies     of     un-  ed  made  defective. 

signed  letters  demurrable.       655.     Asking  judgment  for  excess 

649.  Petition   for   commission  on  demurrable. 

passing  ot  title  defective.  656.     Petition     sufficient     without 
649a.    Petition  which  failed  to  state  alleging  sale  for  the  pur- 
cause  of  action.  pose  of  defrauding  plain- 

650.  For  procuring  tenant  in  not  tiff. 

alleging  to  sell.  656a.  Petition  not  defective  as  al- 

651.  Agreement   to   pay   as   com-  leging   contract   in   viola- 

mission  all   over   enough.  tion  of  broker's  duty. 

Sec.  626.     Custom  or  Usage. 

A  custom  that  did  not  require  purchasers  of  land  to  pay 
cash,  although  the  terms  of  sale  were  for  cash  payments,  will 
not  sustain  a  contract  of  sale  made  by  a  real  estate  agent  which 
violated  an  instruction  to  sell  for  one-third  cash.  Wandhss 
Y.  McCandless,  38  Iowa,  20.  Where  a  principal  claimed  that 
its  broker  had  been  notified  of  its  custom  to  give  only  quit- 
claim deeds  to  purchasers  of  its  real  estate,  evidence  to  show 
that  after  its  refusal  to  give  a  deed  with  warranty,  it  offered 
to  give  such  a  deed  if  an  increased  price  was  paid  was  ad- 
missible to  show  that  no  such  custom  existed.  Beach  v.  Trav- 
elers' Ins.  Co.,  73  Conn.  118,  46  A.  867.  Where  a  custom  ex- 
ists among  real  estate  agents  and  their  customers  which  en- 
titles the  agents  to  commissions  on  a  sale  of  land  placed  in 
their  hands,  whether  the  sale  is  made  by  them  or  by  others, 
during  the  period  it  is  under  their  control,  such  custom  amounts 
to  a  contract  when  it  is  known  to  their  customers.  Harrell  v. 
Zimpleman,  66  Tex.  292,  17  S.  W.  478.    See  also  Sees.  599,  626a. 

A  custom  must  be  certain,  uniform  and  generally  understood, 
or  it  is  not  binding  on  the  principal.  Insloe  v.  Jones,  Brightly 
(Pa-.),  76;  Pratt  v.  Bavl;  12  Phila.  (Pa.)  378;  Colland  v. 
Traped,  70  111.  App.  228;  Potts  v.  Aechtertnacht,  93  Pa.  St.  138. 
An  offer  to  prove  a  general  custom  among  brokers  acting  for 
both  parties  to  an  exchange  of  lands  to  charge  commissions 


PLEADINGS,  PRACTICE,  ETC.  423 

to  each,  held  properly  refused,  for  the  reason  that  it  appeared 
that  the  broker  was  the  agent  of  one  of  the  parties,  and  could 
not  therefore  legally  demand  compensation  from  the  other. 
Darti  v.  Somnesym,  86  Minn.  55,  90  N.  W.  115. 

A  real  estate  agent  seeking  to  recover  commissions  for  nego- 
tiating a  sale  where  no  contract  was  made  in  regard  thereto, 
may  prove  a  custom  as  to  the  rate  of  commissions  and  the 
time  of  payment  in  the  place  where  the  business  was  done  and 
the  land  sold,     nansbrough  v.  Neal,  94  Va.  722,  27  S.  E.  593. 

A  custom  existing  among  real  estate  brokers,  according  to 
which  a  commission  is  divided,  where  one  broker  has  a  buyer 
and  the  other  a  seller,  is  not  sufficient  to  entitle  the  broker  rep- 
resenting the  seller,  but  not  effecting  the  sale,  to  recover  of  a 
broker  who  was  the  procuring  cause  of  the  sale  one-half  of  the 
commissions  earned.    Hedenherg  v.  Seeherger,  140  111.  App.  618. 

Sec.  626a.     Custom  insufficient  to  supply  lack  of  employment 
as  broker. 

The  existence  of  a  custom  to  the  effect  that  when  brokers 
negotiate  a  lease  of  real  property  the  lessor  pays  the  commis- 
sion, can  not  fasten  on  a  property  owner  any  liability  as  the 
employer  of  the  broker,  simply  because  he  leases  the  prop- 
erty to  one  introduced  by  the  broker  to  take  it,  without  any 
request,  express  or  implied,  on  the  part  of  the  owner.  Brady 
V.  American  M.  &  E.  Co.,  83  N.  Y.  S.  663,  86  App.  Div.  267. 
See  also  Sec.  626. 

Sec.  627.  Defendant  can  not  object  where  evidence  shows 
sale  for  less  than  broker  claims. 
In  an  action  for  commissions  for  selling  land,  where  the 
petition  alleges  tliat  the  tract  contained  thirty-five  acres  and 
that  the  purcliaser  agreed  to  purchase  it  "for  the  sum  of  $200 
per  acre,  and  in  the  aggregate  for  the  sum  of  $7,000,"  and 
th:.t  defendant  agreed  to  pay  plaintiff  five  per  cent-  for  pro- 
curing a  purchaser,  and  the  evidence  shows  that  the  land  dis- 
posed cf  contained  forty-two  acres,  and  was  sold  for  $7,000, 
but  after  the  sale  the  tract  was  found  to  contain  only  thirty- 
five  acres,  whereupon  defendant  made  the  sale  for  $6,500, 
judgment  for  five  per  cent,  on  the  $6,500  is  warranted,  and 


424  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

defendant  can  not  object  that  the  pleading  alleged  a  sale  for 
$200  an  acre,  while  the  evidence  showed  a  sale  for  less  than 
that  sum.    Hoefling   v.  Hambleton,  84  Tex.  517,  19  S.  W.  689. 

Sec.  628.     Presumptions. 

Any  one  dealing  with  a  person  whom  he  knows  to  be  a  bro- 
ker may  be  presumed  to  know,  from  the  nature  of  the  broker's 
business,  that  he  is  acting  as  agent  for  some  third  person. 
Baxter  v.  Doren,  29  Mo.  434.  The  fact  that  a  real  estate  agent 
had  been  licensed  for  a  number  of  years  and  had  a  license  at 
the  time  of  a  certain  trial  to  recover  commissions  in  another 
case  does  not  raise  a  presumption  that  he  had  a  license  at 
the  time  of  the  transaction  for  which  commissions  are  sought 
to  be  recovered.     Echert  v.  Collot,  46  111.  App.  361. 

The  solvency  and  ability  of  the  proposed  purchaser  to  per- 
form the  obligations  of  his  contract  will  be  presumed  until  the 
contrary  is  proved.  Grossp  v.  Cooley,  43  IMinn.  188,  45  N.  W. 
15.  (This  is  contrary  to  the  general  doctrine.)  Where  a  ven- 
dor accepts  the  purchaser  proposed  by  the  broker  and  enters 
into  a  contract  with  him,  the  solvency  of  the  purchaser  will 
be  presumed,  in  the  absence  of  proof.  Parker  v.  Estahrook, 
68  N.  H.  349,  44  A.  484;  Springer  v.  Orr,  82  111.  App.  558; 
McFarland  v.  Lillard,  2  Ind.  App.  160,  28  N.  E.  229;  Grosse 
V.  Cooley,  43  Minn.  188,  45  N.  W.  15.  Compare  Leuschner  v. 
Patrick  (Tex.  Civ.  App.  '07),  103  S.  W.  664. 

Where  a  contract  to  procure  a  purchaser  of  real  estate  has 
been  continued,  or  the  time  within  which  a  sale  was  to  have 
been  made  is  waived,  without  reference  to  the  compensation 
of  the  broker,  the  presumption  is  that  he  is  entitled  to  recover 
the  sum  originally  agreed  upon.  Ice  v.  Maxwell,  61  W.  Va. 
9,  55  S.  E.  899.  An  agency  to  sell  real  estate  is  presumed  to 
continue  until  a  sale  is  effected,  and  the  burden  is  on  the  owner 
to  rebut  such  presumption.  Hartford  v.  McGillictiddy,  103  Me 
224,  68  A.  860.    See  also  Sees.  612,  614. 

In  an  action  for  procuring  a  loan  on  property,  it  can  not  be 
assumed,  in  the  absence  of  evidence,  that  it  was  not  made  be- 
cause of  defendants'  fault. or  because  they  did  not  have  a  good 
title.    Rosenthal  v.  Gunn,  119  N.  Y.  S.  165. 


PLEADINGS,  PRACTICE,  ETC.  425 

Sec.  629.    Assumpsit. 

An  innocent  vendor  can  not  be  sued  in  tort  for  the  fraud 
of  his  agent  in  effecting  a  sale;  in  such  a  case  the  vendee  may 
rescind  the  contract  and  reclaim  the  money  paid,  and  if  not 
repaid  may  sue  the  vendor  in  assumpsit  for  it,  or  he  may  sue 
the  agent  for  the  deceit.  Kennedy  v.  McKay,  43  N.  J.  L.  288; 
Volker  v.  Fisk  (N.  J.  Ch.  '09),  72  A.  1011;  Sterling  v.  Bank 
of  Sparta,  336  Wis.  369,  117  N.  W.  798. 

Sec.  630.    Actions  between  principals  and  agents. 

An  action  by  a  broker  for  his  commissions  will  not  lie  until 
it  is  shown  that  he  has  effected  or  contracted  a  sale  of  the 
property;  unsuccessful  efforts,  however  meritorious,  afford  no 
ground  of  action,  he  loses  his  labor  and  effort  which  he  staked 
upon  success;  his  commissions  are  based  upon  the  contract 
of  sale.  Viaux  v.  Old  South  Society,  133  Mass.  1,  10;  Drury  v. 
Newman,  99  ]\Iass.  256.    See  also  Sec.  563 

The  recovery  in  an  action  by  a  principal  against  a  broker 
for  fraudulently  representing  that  the  worthless  property  on 
which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Ruhens  v.  Merd, 
121  Cal.  17,  53  P.  432. 

One  who  employed  a  broker  to  sell  his  land  can  not  maintain 
an  action  against  the  broker  to  recover  the  balance  of  the  pur- 
chase money  in  the  hands  of  the  latter  until  a  demand,  and 
an  accounting  on  demand,  has  been  made  and  refused.  Gohin 
V.  Phillips,  12  Ind.  App.  629,  40  N.  E.  929 ;  Shepard  v.  Broivn, 
9  Jur.  N.  S.  (Eng.^  195,  78  T.  Rep.  N.  S.  499,  11  W.  Rep.  162. 

Where,  in  an  action  against  brokers  who  had  effected  a  sale 
of  plaintiff's  land,  the  parties  alleged  that  defendants  received 
from  the  purchaser  a  sum  of  money  for  the  use  of  plaintiff 
and  retained  it,  refusing  to  pay  it  over,  the  petition  was  not 
insufficient  for  failing  to  allege  that  defendants  were  authorized 
to  collect  the  money.  TIarrison  v.  Lakeman,  189  ]\Io.  581,  88 
S.  W.  53. 

Where  the  property  of  the  principal  is  sold  by  the  broker  on 
terms  not  authorized,  in  an  action  against  the  latter  for  dam- 
ages caused  by  such  sale,  in  the  absence  of  an  allegation  of 
fraud  on  the  part  of  the  agent,  the  principal  must  plead  a 


426  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

return  of  the  consideration  to  the  purchaser  or  an  offer  to  do 
so.     Liuin  V.  Guthrie,  115  Iowa,  501,  88  N.  W.  1060. 

Plaintiff  ag:reed  in  writing  to  convey  lands  to  the  order  of 
the  defendant  for  a  price  named,  and  to  pay  him  a  brokerage 
commission  for  effecting  a  sale  of  it;  the  defendant  sold  the 
land  for  a  sum  larger  than  the  price  named  by  the  plaintiff, 
and  retained  the  difference  himself,  and  charged  the  plaintiff 
his  commissions.  Held,  in  an  action  to  recover  the  difference, 
that  the  plaintiff  should  have  been  permitted  to  show  that  his 
property  had  been  and  was  in  the  hands  of  the  defendant  for 
sale  as  a  broker  on  commission  before  and  at  the  time  of  sign- 
ing the  agreement,  as  well  as  what  representations  were  made 
by  the  defendant  as  to  his  object  in  taking  the  agreement,  and 
its  purposes  so  far  as  he  was  concerned,  as,  if  they  were  of 
the  nature  which  the  plaintiff  offered  to  show,  they  had  a  ten- 
dency to  show  that  the  agreement  was  procured  by  fraud  and 
misrepresentation  on  the  part  of  the  defendant.  Bassett  v. 
Rogers,  165  :\Iass.  377,  43  N.  R.  180. 

Wliere  separate  owners  of  part  of  an  entire  piece  of  real 
estate  jointly  employed  a  broker  to  sell  the  entire  tract,  an 
action  may  be  maintained  against  them  jointly  on  the  con- 
tract. McGill  V.  Press] u,  62  Ind.  193.  See  also  Sec.  407.  Where 
an  intending  purchaser  of  land,  who  had  paid  a  sum  as  ff>* 
first  money  to  the  broker  employed  to  sell  it,  refused  to  com- 
plete his  contract  of  purchase  and  waived  the  time  within  which 
he  could  complete  it,  and  the  broker  converted  the  sum  paid, 
the  right  of  the  owner  of  the  land  to  sue  the  broker  for  such 
sum  accrued,  though  the  time  for  the  purchaser's  completion 
of  the  contract  had  not  expired.  M.  L.  Chambers  &  Co.  v. 
Herring   (Tex.  Civ.   App.    '05),  88  S.  W.  371. 

A  broker  under  a  contract  to  procure  a  purchaser  of  real 
estate,  which  stipulated  that  the  owner  was  to  receive  a  speci- 
fied sum  out  of  the  price,  and  that  the  balance  was  to  be  paid 
to  the  broker  as  his  commissions,  does  not  make  out  a  case  for 
the  recovery  of  his  commissions  by  showing  that  he  secured  a 
contract  with  solvent  parties  to  purchase  the  land,  but  must 
show,  either  that  the  owner  received  some  part  of  the  balance 
of  the  price  to  which  the  broker  was  entitled,  or  that  the  par- 
ties who  agreed  to  purchase  were  ready,  able  and  willing  to 


PLEADINGS,  PRACTICE,  ETC.  427 

purchase,  and  were  prevented  from  doing  so  by  the  default 
of  the  owner.  Lewis  v.  Briggs,  81  Ark.  96,  98  S.  W.  683.  See 
also  Sec.  535. 

M.  &  W.,  each  claiming  to  have  been  the  procuring  cause 
of  the  sale  of  c  jf endant  's  farm,  brought  separate  actions  for 
commissions  against  defendant  in  different  counties ;  W.  was 
made  a  party  defendant  to  ^M.'s  action,  and  filed  an  answer, 
making  it  a  cross-petition  against  defendant,  to  which  defend- 
ant answered  and  ]\r.  filed  a  reply.  Held,  that  W.'s  action 
should  be  dismissed,  and  both  ]\I.  and  W.  should  be  required 
to  interplead  in  the  action  in  which  both  were  parties.  Hop- 
kins V.  Moseley,  31  Kj.  L.  R.  1308,  105  S.  W.  104. 

Where  a  real  estate  agent  employed  by  the  vendor  in  a  sale 
of  land  holds  the  receipt  given  the  purchaser  by  his  principal 
for  money  paid  thereon,  and  afterward  the  sale  is  abandoned 
by  the  vendor  and  the  money  returned  to  the  agent  who  de- 
livers up  the  receipt,  he  is  so  far  acting  as  the  agent  of  the 
purchaser  in  the  receipt  of  the  money  that  the  latter  may 
maintain  an  action  against  him  to  recover  it.  Phelps  v.  Broiun, 
95  Cal.  572,  30  P.  774.    See  Sec.  25. 

As  a  result  of  the  confidential  relations  existing  between 
the  parties,  and  the  good  faith  required,  if  an  agent,  being 
authorized  to  sell  land  for  his  principal  at  a  fixed  price,  sells 
it  for  a  higher  price,  he  must  account  to  his  principal  for  the 
excess.  McDonald  v.  Fithian,  1  Gilm.  (111.)  269;  Ziegler  v. 
Hughes,  55  111.  288;  Meeker  v.  York,  13  La.  Ann,  18;  Bruce  v. 
Davenport,  36  Barb.  (N.  Y.)  34:9 ;  3Ierryman  v.  David,  31  111. 
404;  Kerf  cot  v.  Hyman,  52  111.  512. 

Plaintiff  alleged  that  he  employed  II.  to  find  a  purchaser  for 
a  farm,  and  that  he  found  a  purchaser  for  a  price  which 
included  the  assignment  of  a  note  and  mortgage  executed  by 
S. ;  that  on  the  day  the  sale  was  to  be  completed  the 
purchaser  handed  H.  a  roll  of  money  and  some  papers,  which 
he  falsely  represented  to  be  the  note  and  mortgage  of  S. 
H.  falsely  and  fraudulently  represented  that  it  was  necessary 
for  him  to  retain  the  papers  to  have  the  assignments  recorded, 
which  plaintiff  permitted  him  to  do;  that  the  papers  so  turned 
over  were  not  in  fact  the  note  and  mortgage  of  S.,  but  two 
notes  executed  by  G.,  which  were  outlawed  and  worthless;  that 


428  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

as  soon  as  plaintiff  learned  such  fact  he  refused  to  accept  the 
G.  notes  and  demanded  a  return  of  his  deed,  offering  to  return 
the  consideration,  which  was  refused;  and  that  the  purchaser 
and  H.,  both  of  whom  were  made  defendants,  had  conspired 
to  cheat  and  defraud  plaintiff  and  had  agreed  that  the  G.  note 
should  be  substituted  for  the  S.  note,  and  that  H.  should  rep- 
resent that  the  papers  so  turned  over  were  the  papers  agreed 
to  be  received,  etc.,  and  prayed  judgment  for  damages  sustained 
by  reason  of  defendants'  fraudulent  acts  in  the  sum  of  $2,000. 
Held,  that  the  complaint  stated  a  cause  of  action  ex  delicto 
and  not  on  contract.  Francesi  v.  Hatch,  117  Wis.  242,  93 
N.  W.  1118. 

A  real  estate  broker  who  takes  an  option  for  the  purchase 
of  property  in  his  own  name,  but  in  reality  for  the  benefit  of 
a  customer  to  whom  he  demands  its  conveyance,  having  him- 
self no  interest  in  the  contract  beyond  a  contingent  commission 
in  case  the  sale  is  made,  can  not  maintain  a  suit  for  specific 
enforcement  of  the  contract,  under  Rev.  Stat,  of  Idaho,  Sec. 
4090,  which  provides  that  every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  with  certain  exceptions, 
none  of  which  covers  such  case.  Lawyer  v.  Post,  109  Fed.  512, 
47  C.  C.  A.  491. 

A  complaint  which  alleges  that  defendant  employed  plain- 
tiff to  procure  within  a  specified  time,  "an  acceptance  of  a 
certain  application  made  by  defendant  for  a  loan,"  and  that, 
within  the  time,  plaintiff  procured  a  third  person  "to  accept 
said  application,"  sufficiently  alleges  that  defendant  was  noti- 
fied of  the  acceptance,  though  it  does  not  allege  that  the  de- 
termination of  the  third  person  was  communicated  to  the  de- 
fendant, which  must  be  proved  to  justify  a  recovery.  Morton 
V.  Petit,  117  N.  Y.  S.  364. 

Sec.  631.     Conmion  counts. 

Under  Burns'  Rev.  Stat.  1901,  Sec.  6629a,  providing  that 
no  contract  for  the  payment  of  any  sum  of  money  for  com- 
missions for  procuring  by  one  person  of  a  purchaser  of  real 
estate  of  another  shall  be  valid  unless  in  writing,  signed  by 
the  owner  of  the  real  estate,  no  recovery  can  be  had  on  the 
common  counts  for  sellinp-  real  estate  under  oral  employment 
therefor.     BeaUer  v.  Clark,  32  Ind.  App.  222,  68  N.  E.  613. 


PLEADINGS,  PRACTICE,  ETC.  429 

"Where  there  was  a  special  contract  of  employment  of  brokers 
to  sell  certain  real  property,  they  would  not  be  entitled  to  recover 
for  their  services  on  the  common  counts,  unless  the  agreement 
was  executed  and  completed  on  their  part,  or  they  were  pre- 
vented from  completing  the  sale  within  the  time  limited  in  the 
contract  for  its  completion.  McGonigal  v.  Boughley  (Del. 
Super.  '06),  63  A.  801. 

A  real  estate  broker's  commissions  fully  earned  under  an 
express  contract  may  be  recovered  under  the  common  counts, 
a-nd  the  contract  itself  admitted  in  proof  of  the  particulars  of 
the  general  right  so  set  up.  Risley  v.  Beaumont,  71  N.  J.  L. 
372,  59  A.  145 ;  Lawrence  v.  Rhodes,  188  111.,  96,  58  N.  E.  910 ; 
Tanner  v.  Clapp,  139  111.  App.  353. 

Proof  in  the  first  instance  that  the  plaintiffs  were  licensed 
real  estate  brokers  is  unnecessary  to  a  recovery  under  the  com- 
mon counts  for  their  commissions.  Munson  v.  Fenno,  87  111. 
App.  655. 

Sec.    C32.     Petition — Ultimate   facts   to   be   proved   must   be 
pleaded. 

Plaintiff  must  plead  the  ultimate  facts  upon  which  he  relies 
for  a  recovery,  else  he  can  not  prove  them.  Burnett  v.  Edling, 
19  Tex.  Civ.  App.  711,  48  S.  W.  775.  To  entitle  him  to  recover 
commissions  on  a  particular  contract  of  employment  he  must 
plead  it.    Armstrong  v.  O'Brien,  83  Tex.  635,  19  S.  W.  268. 

Sec.  632a.     Petitions  in  actions  to  recover  commissions. 

An  action  by  a  real  estate  broker  for  commissions  will  not 
lie  until  he  has  effected  or  procured  a  sale.  Mueller  v.  Bell 
(Tex.  Civ.  App.  '09),  117  S.  W.  993.  •  (Compare,  when  em- 
ployed to  procure  a  purchaser.)  Bradley  v.  Bower  (Neb.  Sup. 
'04),  99  N.  W.  490.  And  a  complaint  by  a  real  estate  broker 
for  commissions  which  alleges  that  defendant  employed  him  to 
sell  the  land  and  agreed  to  pay  him  a  certain  commission  if  he 
found  a  purchaser,  and  that  he  advertised  and  sold  the  land  to 
one  who  paid  the  purchase  money,  and  received  a  deed,  but  that 
the  defendant  refused  to  pay  the  broker  his  commissions  is 
good  against  demurrer.  Adams  v.  McLaughlin,  159  Ind.  23,  64 
N.  E.  462;  Lukin  v.  Halderson,  24  Ind.  App.  645,  57  N.  E.  254; 
Cannon  v.  Castelman,  24  Ind.  App.  188,  55  N.  E.  Ill  ;  Mullen 
V.  Bower,  22  Ind.  App.  294,  53  N.  E.  790;  Wright  v.  Beach,  82 
Mich.  469,  46  N.  W.  673 ;  Lemon  v.  DeWolf,  89  Minn.  465,  95 
N.  W.  316 ;  Downey  v.  Turner,  28  N.  Y.  App.  D--.  491,  51  N.  Y. 


430  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

S.  105;  Yarhorough  \.  Cr eager  (Tex.  Civ.  App.  '03),  77  S.  W. 
645;  Brockenhrow  v.  Stafford  (Tex.  Civ.  App.  '03),  76  S. 
W.  576. 

A  complaint  for  a  commission  is  sufficient  if  it  states  such 
facts  as  will  inform  the  defendant  of  the  nature  of  the  action, 
and  be  so  explicit  that  a  judgment  thereon  will  bar  another  suit 
for  the  same  cause.  Beincke  v.  Wnegler,  77  Ind.  468 ;  Acker- 
man  V.  Bri/an,  33  Neb.  515,  50  N.  W.  435. 

A  complaint  for  a  commission  by  a  broker  employed  to  sell 
lands  must  allege  in  direct  and  positive  terms  that  he  rendered 
the  services  which  resulted  in  the  sale  of  the  property,  or  that 
he  produced  to  the  principal  a  party  ready,  willing  and  able  to 
purchase  said  property  upon  the  terms  named.  Jacobs  v. 
Skenon,  3  Ida.  274,  29  P.  44;  Booth  v.  Moody,  30  Ore.  222,  46' 
P.  884 ;  Sullivan  v.  Milliken,  113  Fed.  93,  51  C.  C.  A.  79. 

If  the  complaint  alleges  that  the  defendant  refused  to  con- 
summate the  sale,  it  must  also  allege  that  the  customer  was  able, 
ready  and  willing  to  buy  the  property  on  the  terms  proposed 
by  the  principal,  or  it  is  fatally  defective  on  demurrer.  Sayre 
V.  Wilson,  86  Ala.  151,  5  S.  157;  Reardon  v.  Washburn,  59  111. 
App.  161 ;  Newton  v.  Donnelly,  9  Ind.  App.  359,  36  N.  E.  769. 

Ser,  632b.    When  right  of  action  for  commissions  accrues  to  a 
broker. 

A  petition  by  a  broker  for  commissions  for  effecting  a  sale 
or  exchange  of  property  must  allege  a  contract  of  employment, 
and  a  demurrer  was  sustained  by  reason  of  its  failing  to  do  so. 
Toole  V.  Baer,  91  Ga.  113,  16  S.  E.  378;  Fenivick  v.  Watkins, 
25  Ky.  L.  R.  1962,  79  S.  W..214.  The  petition  may  properly 
set  forth  the  agreement  between  the  owner  and  the  purchaser 
settling  the  matter  arising  out  of  the  owner's  failure  to  sell, 
as  showing  an  insistence  by  the  proposed  purchaser  on  his  right 
to  purchase.  Wilson  v.  Clark,  79  S.  W.  649,  35  Tex.  Civ.  App. 
92.  Where  a  petition  by  a  broker  employed  to  secure  a  loan 
does  not  allege  that  the  transaction  was  consummated,  it  must 
allege  that  plaintiff  notified  the  defendant  that  a  lender  was 
found.  McLaughlin  v.  Whiton,l%  N.  Y.  S.  1006,  37  Misc.  838; 
P enter  v.  Staight,  1  Wash.  365,  25  P.  469.  Where  plaintiff  was 
to  receive  $1,500  for  furnishing  a  $25,000  cash  purchaser,  and 
furnished  one  who  purchased  at  $20,000  cash,  he  can  not  recover 
proportionate  commissions  on  the  lesser  sum,  or  what  his  serv- 
ices are  reasonably  worth,  when  he  does  not  declare  on  a  ^quantum 
meruit.    Steinfeld  v.  Storm,  63  N.  Y.  S.  966,  31  Misc.  167. 


PLEADINGS,  PRACTICE,  ETC.  431 

Sec.  633.  Petition  alleging  failure  to  exchange  defective  in 
'alleging  contract  fcr  purchaser,  no  breach. 
Where  a  petition  alleged  a  failure  of  the  defendant  to  make 
an  exchange  of  property  procured  by  the  plaintiff,  it  was  held 
defective  in  alleging  a  contract  to  procure  a  purchaser,  with 
an  implied  contract  to  pay  the  reasonable  value  of  the  services; 
consequently  there  was  no  breach  of  contract  for  which  the 
defendant  was  liable  in  damages  to  the  plaintiff,  and  a  demurrer 
was  properly  sustained.  Mvlhall  v.  Bradley,  63  N.  Y.  S.  782, 
50  App.  Div.  179. 

Sec.  634.  Petition  alleging  sales  to  persons  defective  for  fail- 
ure to  give  names,  etc. 
A  petition  by  an  agent  to  sell  land  to  recover  damages  for 
refusal  of  the  owner  to  execute  deeds  to-  purchasers,  which 
alleges  a  contract  by  him  to  various  persons  who  were  ready 
and  able  to  buy  the  lands  on  the  terms  agreed  on  between  him 
and  the  defendant,  is  defective  for  failure  to  allege  the  names 
of  such  purchasers,  the  quantity  of  land  agreed  to  be  sold  to 
each  of  them  and  the  price.  Burnett  v.  Edling,  19  Tex.  Civ. 
App.  711,  48  S.  W.  775. 

Sec.  635.  Petition  alleging  deed  of  trust  defendant  refused  to 
release  defeating  sale,  not  defective. 

A  petition  which  alleged  that  the  sale  failed  because  of  an 
unsatisfied  deed  of  trust  on  the  property,  which  the  defendant 
failed  to  release  or  have  cancelled,  is  not  defective  in  failing  to 
allege  that  the  deed  was  a  lien  on  the  property,  or  that  de- 
fendant refused  to  consummate  the  sale.     Gerhard  v.  Peck,  42 

Mo.  App.  644, 

« 

Sec.  635a.  Complaint  not  objectionable  for  failing  to  show 
that  plaintiff  found  a  purchaser  on  terms  offered  by  mort- 
gagee. 

A  complaint  alleged  that  a  mortgage  foreclosure  on  land 
was  compromised  by  the  mortgagor  conveying  his  title  to  the 
mortgagee,  and  in  consideration  the  mortgagee  delivered  a 
contract  giving  the  mortgagor  the  exclusive  sale  of  the  mort- 
gaged property,  and  that  should  he  succeed  in  selling  at  more 
than  the  amount  due  the  mortgagee,  the  excess  should  be  re- 
tained as  commissions ;  that  the  mortgagor  assigned  to  plain- 
tiffs his  interest  in  the  contract;  that  plaintiffs  sold  the  prop- 
erty and  tendered  to  the  mortgagee  the  amount  due  it,  and 
that  plaintiffs  were  at  all  times  willing  to  perform,  and  had 
performed  all  the  conditions  of  the  contract,  is  not  subject  to 
the  objection  that  it  fails  to  allege  that  plaintiffs  found  a  pur- 
chaser on  the  terms  offered  by  the  mortgagee,  and  clearly  shows 
that  a  sale  was  made  fo  as  to  secure  to  the  mortgagee  all  it 


432  AMERICAN    1.AVV    REAIi    ESTATE    AGENCY. 

could  claim  under  the  contract.     Chatfield  v.  Continental  B.  & 
L.  Ass'n,  6  Cal.  App.  665,  92  P.  1040. 

Sec.  636.     Petition  that  broker  was  to  have  all  over  a  certain 
sum,  not  breached  by  owner  selling  at  net  price. 

"Where  a  petition  alleged  that  plaintiffs  were  employed  to 
sell  defendant's  land,  that  they  were  to  have  all  they  could 
obtain  for  it  over  a  certain  sum,  and  that  they  offered  it  to 
one  who  purchased  it  of  defendant  for  that  sum,  they  could 
not  recover  the  reasonable  value  of  their  services  on  an  im- 
plied contract  on  the  ground  that  the  defendant  had  accepted 
the  benefit  of  their  services ;  and  plaintiffs  could  not  recover  of 
defendant  for  .breach  of  an  agreement  that  he  would  ask  the 
sum  fixed  by  the  brokers  of  any  customer  who  came  to  him, 
where  the  complaint  did  not  allege  such  a  contract.  Ames  v. 
Lamont,  107  Wis.  531,  83  N.  W.  780. 

Sec.  637.  Petition  declaring  on  express  contract,  on  failure  to 
prove  may  recover  on  promise  to  pay  certain  per  cent. 
Although  the  plaintiff  declared  on  an  express  contract  to 
pay  him  all  that  he  could  sell  a  tract  of  land  for  over  a  cer- 
tain sum,  he  may  recover  on  the  further  allegation  of  an  ex- 
press promise  of  defendant  to  pay  him  a  -  certain  percentage 
commission,  where  the  broker  said  he  was  in  the  habit  of  receiv- 
ing five  per  cent,  commission  on  sales,  to  which  the  defendant 
did  not  dissent.  Armstrong  v.  Cleveland,  32  Tex.  Civ.  App. 
482,  74  S.  W.  789 ;  Bah  v.  Hirschhein,  12  N.  Y.  S.  730. 

Sec.  637a.  Necessary  allegations  and  proof  to  enable  broker 
to  recover  commissions  for  effecting  a  sale  or  exchange. 
,  Under  a  written  agreement  of  a  land  owner  to  pay  a  broker 
a  certain  sum  if  he  would  send  or  cause  to  be  sent  to  the  land 
owner  a  person  with  whom  the  latter  "may  see  fit  and  proper 
to  effect  a  sale  or  exchange"  of  the  land,  the  broker  can  not 
recover  the  sum  stipulated,  without  proof  of  a  sale  or  exchange 
of  the  land ;  nor  on  a  quantum  meruit  for  services  in  nego- 
tiating for  such  a  sale  or  exchange,  Avithout  proof  that  such 
negotiations  were  rendered  fruitless  by  the  fault  of  the  land 
owner.     Walker  v.  Terrill,  101  JNIass.  257. 

Sec.  637b.  Petition  sufficiently  setting  out  contract  with  firm 
of  real  estate  brokers  to  sell  land. 
The'  petition  of  C.  K.  &  B.  alleging  that  plaintiffs  are 
a  real  estate  firm,  that  defendant  placed  land  in  the  hands 
of  C.  &  K.  to  sell,  an'l  agreed  to  pay  them  a  commission  for 
selling  it,  that  they  fold  it,  and  that  after  the  contract  be- 
tween defendant  and  C.  &  K.  was  made,  C.  &  K.  formed  a 
partnership  with  B.  and  he  thereby  became  interested  in  said 
contract,  sufficiently  charges,  as  against  the  claim  of  variance, 


PLEADINGS,  PRACTICE,  ETC.  433 

that  defendant  contracted  with  C.  &  K.  as  partners.  Cook  v. 
Piatt,  126  Mo.  App.  553,  104  S.  W.  1131.  But  see  Sec.  37. 
Mechem  on  Ag.,  Sec.  221. 

Sec.  638.  Petition,  plaintiff  can  not  recover  on  proof  of  con- 
tract substituted  for  that  sued  on. 
Plaintiff  can  not  recover  on  proof  of  a  contract  other  than 
that  declared  on.  Daley  v.  Buss,  86  Cal.  114,  24  P.  867 ;  Kid- 
man V.  Garrison,  122  Iowa,  215,  97  N.  W.  1078 ;  Jones  v.  Pen- 
dleton, 134  Mich.  460,  96  N.  W.  574 ;  Brady  v.  Barnett,  34  Tex. 
Civ.  App.  433,  78  S.  W.  965. 

Sec.  639.  Petition,  failing  to  prove  agreed  compensation,  re- 
covery of  reasonable  value  may  be  had. 
It  has  been  held  on  a  petition  to  recover  an  alleged  agreed 
compensation  for  services  as  broker,  a  recovery  may  be  had  on 
proof  of  the  reasonable  value  of  the  services,  and  the  variance 
may  be  disregarded  unless  it  appears  that  defendant  was  misled. 
Susdorf  V.  Schmidt,  55  N.  Y.  319.    Compare  Sec.  587. 

Sec.  640.  Petition  alleging  plaintiff  acted  as  broker,  secured 
purchaser,  defendant  refused  deed,  good  against  demurrer. 
A  complaint  alleged  that  plaintiff  acted  as  broker  for  de- 
fendant and  secured  a  purchaser  for  his  land,  but  that 
defendant  refused  to  make  a  deed  therefor,  and  that  plaintiff 
was  entitled  to  his  commissions.  Held,  to  show  a  cause  of  action 
and  to  be  good  on  demurrer  for  the  want  of  facts.  Beincke  v. 
Wuegler,  77  Ind.  468;  Long  v.  Thompson,  73  Kan.  76,  84  P. 
552;  Yoder  v.  Randol,  16  Okl.  308,  83  P.  537,  3  L.  R.  A.  576; 
Bempel  v.  Hopkins,  101  Minn.  3,  111  N.  W.  385 ;  Ackerman  v. 
Bryan,  33  Neb.  515,  55  N.  W.  435;  Ross  v.  Carr  (N.  M.  Sup. 
'09),  103  P.  307. 

Sec.  640a.  Petition  for  commissions  not  demurrable  for  fail- 
ing to  allege  customer  was  ready,  able  and  willing  to 
purchase. 

In  an  action  by  brokers  on  a  contract  whereby  they  agreed 
to  procure  for  defendant  a  customer  for  her  property  at  a  speci- 
fied price,  a  complaint  alleging  a  compliance  w;th  the  contract 
by  plaintiffs  was  not  demurrable  for  failing  to  allege  that  the 
customer  was  ready,  able  and  willing  to  pay  for  the  property. 
Lunsford  v.  Bailey,  142  Ala.  319,  38  S.  362. 

Sec.  641.  Petition,  on  contract  to  pay  if  sale  made  by  owner, 
agent  may  recover  without  showing  performance. 

Defendant  made  complainant  his  agent  to  sell  certain  lands, 
the  agency  to  continue  for  six  months,  unless  sooner  terminated 
by  a  sale;  defendant  reserved  the  right  to  sell  the  land  him- 


434  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

self,  in  which  case  plaintiff  was  to  receive  the  same  fee  as  if 
he  had  sold  it;  within  seventeen  days  after  making  the  con- 
tract defendant  sold  the  land  and  plaintiff  sued  for  his  fees. 
Held,  that  the  plaintiff  need  not  expressly  allege  that  he  had 
performed  the  contract  on  his  part.  Singleton  v.  O'Blevis,  125 
Ind.  151.  Compare  Wolff  v.  Dembosky,  74  N.  Y.  S.  465,  36 
Misc.  643,  66  A.;D.  428. 

Sec.  642.  Petition  to  recover  money  broker  refuses  to  pay 
need  not  allege  he  had  authority  to  collect. 
Where,  in  an  action  against  a  broker  who  had  effected  a  sale 
of  plaintiff's  land,  tlie  petition  alleged  that  defendant  received 
from  the  purchaser  a  sum  of  money  for  the  use  of  plaintiff 
and  retained  it,  refusing  to  pay  it  over,  the  petition  was  not 
insufficient  for  failing  to  allege  that  defendants  were  author- 
ized to  collect  the  money.  JIarrison  v.  Lakeman,  189  Mo.  581, 
88  S.  W.  53. 

Sec.  642a.  Broker  held  not  liable  to  pay  to  principal  money 
refunded  to  purchaser  on  rejected  contract  of  sale. 
Plaintiffs  authorized  defendant  to  sell  land  for  them,  no  terms 
being  stated  in  the  agreement,  at  a  certain  price  within  five 
days,  agreeing  to  pay  as  commission  whatever  the  land  brought 
over  the  price  fixed.  Defendant  found  a  purchaser  who  paid 
doM^n  a  bonus  on  condition  that  if  the  title  was  not  insured 
by  a  certain  title  insurance  company,  the  bonus  was  to  be  re- 
funded. The  title  was  not  insured  and  defendant  refunded  the 
money  paid.  Plaintiffs  then  sued  defendant,  claiming  that  it 
had  received  this  money  as  plaintiffs'  agent.  Held,  that  de- 
fendant was  more  than  a  mere  agent  of  plaintiffs,  the  agree- 
ment being  in  the  nature  of  an  option  for  five  days,  and  de- 
fendant was  not  liable  for  such  money.  Bohinson  v.  Easton, 
28  P.  796,  93  Cal.  80. 

Sec.  642b.     Broker  receiving  money  for  his  principal  not  liable 

to  repay  on  suit  by  party  entitled  thereto. 

An  agent  receiving  money  for  his  principal    in  pursuance 

<xf  a  valid  authority    Avithout  fraud,  duress  or  mistake,  is  not 

liable  to  an  action  in  behalf  of  the  person  who  is  ultimately 


PLEADINGS,    PRACTICE,   ETC.  435 

entitled  to  the  money,  for  neglecting  to  pay  the  same  upon 
request,  and  before  it  was  paid  over  to  the  principal.  Colvin 
V.  Holbrook,  2  N.  Y.  126;  Costigan  v.  Newland,  12  Barb.  (N. 
Y.)  456.     See  also  Sec.  3S4. 

Sec.   642c.     Circumstances    under    which    party    entitled    to 
money  may  sue  the  agent  for  its  recovery. 

Where  money  was  paid  to  an  agent  on  a  purchase  of  land, 
under  circumstances  showing  bad  faith,  as  where  it  was  the 
design  of  the  vendor  to  put  upon  the  purchaser  a  defective 
title,  the  latter  is  entitled  to  a  return  of  his  money,  and  he 
will  not  be  required  to  pursue  the  principal,  but  may  sue  the 
agent  for  a  recovery  of  the  money,  although  he  knew  at  the 
time  of  paying  the  money  to  the  agent  that  the  latter  was 
acting  in  that  capacity;  because,  if  the  vendor  or  his  agent 
knew  at  the  time  of  the  contract  that  the  vendor  had  no  title 
to  the  land,  it  was  a  palpable  fraud  and  the  purchaser  was 
entitled  to  rescind  the  contract;  payment  of  the  money  over 
to  the  principal,  without  notice  of  the  fraud  on  the  part  of 
the  agent,  or  notice  not  to  pay  it  over,  would  be  a  good  de- 
fense, but  the  agent  should  prove  such  payment  over,  as  the 
law  will  not  presume  it.     ShepJierd  v.  Underwood,  55  111.  475. 

Sec.   643.     Petition  alleging  sale  by  owner  ending  contract 
demurrable  for  failure  to  allege  sale  by  agent. 

Defendant  listed  certain  property  with  plaintiff  for  sale  un- 
der a  contract  providing  that  when  the  land  was  sold,  or  when 
plaintiff  performed  its  part  of  the  contract  defendant  was  to 
pay  five  per  cent,  commissions  and  all  that  the  land  was  sold 
for  over  the  sum  specified;  that  plaintiff  was  to  advertise  the 
land  for  sale,  and  that  by  selling  the  land  himself  or  by  giv- 
ing plaintiff  thirty-  days'  notice,  defendant  might  terminate 
the  agreement,  which,  in  either  event,  should  be  considered  as 
performance  on  plaintiff's  part;  the  first  land  company  that 
sold  was  to  get  the  commissions,  and  the  rest  to  claim  no  com- 
mission; plaintiff  alleged  that  defendant  terminated  the  agree- 
ment by  a  notice  that  he  had  sold  the  land.  Ileld,  that  under 
such  contract  it  was  entitled  to  a  commission  only  in  ease  it 
actually  made  a  sale  of  the  land,  and  that  the  petition  was 


436  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

therefore  demurrable.    Iowa  Land  Co.  v.  Schoenewe  (Iowa  Sup. 
'05) ,  102  N.  W.  817.     See  also  Sec.  15. 

Sec.  644.     Petition  alleging  notice  of  double  employment  and 
defendant  consented,  not  demurrable. 

Where,  in  an  action  on  a  broker's  contract  for  the  sale  of 
real  estate,  he  alleged  that  after  undertaking  the  sale  for  de- 
fendant he  reported  to  him  that  he  had  a  purchaser  who  had 
offered  him  $5,000  in  cash  to  bring  about  the  purchase,  and 
that  defendant  assented  to  plaintiff's  acceptance  of  the  joint 
employment  and  stated  that  it  would  in  no  wise  interfere 
with  their  contract,  the  petition  was  not  demurrable  as  show- 
ing a  forfeiture  of  plaintiff's  right  by  his  acceptance  of  an 
inconsistent  employment.  Shropshire  v.  Adams,  40  Tex.  Civ. 
App.  339,  89  S.  W.  448. 

Sec.  645.  Petition  which  alleged  bringing  parties  into  touch, 
etc.,  insufficient. 
A  petition  praying  for  judgment  for  $2,000,  alleged  that  de- 
fendant, being  the  owner  of  land,  employed  plaintiff,  agreeing 
to  pay  him  all  over  $4,000  that  could  be  realized  in  a  sale  of 
the  land;  that  plaintiff  rendered  services  in  looking  up  and 
bringing  in  touch  with  defendant  on  the  proposition  of  a  sale 
of  the  land,  which  thereafter  was  consummated  for  $6,000  cash. 
Held,  insufficient  in  not  alleging  what  plaintiff  was  employed 
by  defendant  to  do,  or  that  he  either  effected  a  sale,  or  that 
it  resulted  from  any  services  under  his  employment.  Fenwick 
V.  WatJcins,  25  Ky.  L.  R.  1962,  79  S.  W.  214. 

Sec.  646,  Petition  alleging  seirvices  which  defendant  accept- 
ed, good  by  promise  to  pay. 
In  an  action  by  a  real  estate  agent  to  recover  commissions 
for  selling  property,  an  allegation  in  the  petition  that  the  ser- 
vices were  performed  "for  the  defendant  with  his  consent," 
and  that  he  accepted  the  services  and  consummated  the  trade, 
is  not  sufficient  to  raise  an  implied  promise  to  pay  for  the  ser- 
vices, and  the  petition  would  not  be  good  but  for  the  allegation 
of  an  express  promise  to  pay.  VUey  v.  Pettit,  96  Ky.  576,  16 
Ky.  L.  R.  286,  650,  29  S.  W.  43R. 


PLE-^  DINGS,    PRACTICE,    ETC.  437 

Sec.  647.     Petition  failing  to  show  written  contract,  alleged 
benefits  to  defendant  immaterial. 

Where  a  petition,  in  an  action  by  a  real  estate  agent  to 
recover  commissions,  fails  to  show  a  written  contract  as  re- 
quired by  statute,  the  fact  that  the  plaintiff  alleges  that  de- 
fendant received  the  benefit  of  his  services  and  therefore  can 
not  be  relieved  of  his  liability  to  pay  for  the  same,  is  imma- 
terial. Covey  V.  Henry,  71  Neb.  118,  98  N.  W.  434;  Smith  v. 
Aultz,  78  Neb.  453,  110  N.  W.  1015. 

Sec.  648.  Petition  setting  forth  incomplete  copies  of  unsigned 
letters  as  contract  demurrable. 
Where  a  petition  sets  forth  letters  alleged  to  have  been  writ- 
ten to  the  parties,  and  to  have  created  the  necessary  written 
contract  between  the  owner  of  the  land  and  the  broker,  but 
does  not  purport  to  give  full  copies,  and  neither  is  there  any 
allegation  that  the  letters  were  signed,  the  petition  is  subject 
to  demurrer.  David  Bradley  v.  Bower  (Neb.  Supreme  '04),  99 
N.  W.  490. 

Sec.  649.  Petition  for  commissions  on  passing  of  title  defec- 
tive in  not  showing  acts  or  omissions  of  defendant. 
A  complaint  for  broker's  commissions  under  a  contract  where- 
by defendant  agreed  that  in  consideration  of  plaintiff's  pro- 
curing a  contract  to  be  made  with  E.  for  the  purchase  of  cer- 
tain land  of  defendant,  plaintiff  should  receive  a  commission 
in  the  event  of  the  closing  of  title,  and  only  in  the  event  that 
title  should  pass,  except  for  default  of  defendant,  is  insuffi- 
eient  in  alleging  only  that  plaintiff  procured  a  contract  for  the 
purchase  of  land  to  be  executed  by  defendant  and  E.,  and  that 
because  of  the  default  of  defendant  the  premises  were  not  con- 
veyed ;  it  should  show  that  E.  was  ready  to  take  title  to  the 
premises,  and  at  the  time  provided  in  the  contract,  and  the 
particular  acts  or  omissions  of  defendant  which  prevented  the 
passing  of  the  title.  Davis  v.  Silverman,  90  N.  Y.  S.  589,  98 
App.  Div.  305. 

Sec.  649a.    Petition  which  failed  to  state  cause  of  action. 

A  contract  between  the  owner  of  real  estate  and  a  broker 
provided  that  on  a  sale  under  a  certain  option,  which  had  been 
given,  a  commission  should  be  paid  to  the  broker,  of  which  one- 


438  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

third  should  be  taken  from  the  cash  portion  of  the  price,  con- 
templates an  actual  sale,  and  a  petition  showing  an  agreement 
to  buy  and  sell,  subject  to  a  deposit  of  "earnest"  by  the  pro- 
posed buyer,  but  which  fails  to  allege  that  a  sale  has  been  made, 
or  that  the  customer  is  willing  to  comply  with  his  agreement 
to  buy  declares  no  cause  of  action.  Jardy  v.  Salmon  Brick  d; 
Lumher  Co.,  121  La.  457,  46  S.  572. 

Sec.  650.  Petition  for  procuring  tenant  who  purchased,  bad 
for  not  alleging  employment  to  make  sale. 
A  complaint,  in  an  action  by  a  broker  for  commissions  for 
procuring  a  purchaser  for  real  estate,  alleged  that  he  procured 
a  tenant  for  defendant  for  certain  premises;  that  a  lease  for  a 
specific  number  of  years  was  executed,  which  reserved  to  the 
tenant  the  privilege  of  purchasing  the  premises  for  a  speci- 
fied sum  at  any  time  witliiu  a  specified  period;  that  before  the 
expiration  of  the  period  he  induced  the  tenant  to  consummate 
the  purchase,  and  that  he  demanded  as  his  commissions  a  speci- 
fied sum,  which  defendant  refused  to  pay,  was  bad  for  failure 
to  allege  the  employment  of  the  broker  to  effect  a  sale.  Morris 
V.  Ponndt,  99  N.  Y.  S.  844,  51  Misc.  6;  Wefel  v.  Stillman,  151 
Ala.  249,  44  S.  203. 

Sec.  651.  Petition  alleging  agreement  to  pay  all  over  a  cer- 
tain sum  as  commissions  on  sale  is  sufficient. 
In  an  action  by  a  real  estate  broker,  the  plaintiff  alleged  that 
defendant  employed  him  to  obtain  for  defendant  a  purchaser 
for  a  certain  piece  of  property,  agreeing  with  plaintiff  that  he 
should  be  paid  for  his  services  all  of  the  purchase  price  above 
a  certain  sum.  Held,  sufficient  in  the  averment  of  the  employ- 
ment of  plaintiff.     Stephens  v.  Bailey,  149  Ala.  256,  42  S.  740. 

Sec.  652.  Petition  for  commissions  for  selling  bonds  defec- 
tive, should  aver  evil  repute  rendered  sales  impossible. 
Plaintiff  sued  to  recover  commissions  for  selling  bonds  in 
Germany;  the  plaintiff  alleged  that  the  sale  was  not  completed 
because  the  prospectus  furnished  by  defendant  contained  false 
statements;  that  one  defendant  sent  to  Germany  with  plain- 
tiff by  the  defendants  had  such  an  evil  reputation  that  it  pre- 
vented the  sale;  and  that  defendants  recalled  plaintiff  before  he 
had   reasonable  opportunity  to   complete  the  sales.     Held,  to 


PLEADINGS,  PRACTICE,  ETC.  439 

state  no  cause  of  action  for  failing  to  show  that  performance 
was  impossible  because  of  the  bad  repute  of  one  of  the  de- 
fendants, that  being  a  risk  which  was  assumed  by  plaintiff. 
Lenkel  v.  Mitchell,  106  N.  Y.  S.  549,  55  Misc.  395. 

Sec.  653.  Petition  for  commissions  out  of  last  cash  payment 
must  aver  such  payment. 
Wliere  a  broker's  contract  for  commissions  provided  that  the 
amount  sued  for  was  payable  out  of  the  last  cash  payment, 
such  payment  constituted  a  condition  precedent  to  any  liability 
on  defendant's  part  to  pay  such  amount  to  plaintiff;  and  hence 
an  allegation  in  plaintiff's  complaint  that  the  sum  sued  for 
"became  due"  on  a  given  date  was  not  a  sufficient  allegation 
that  the  condition  precedent  had  happened.  NeJcarda  y.  Pres- 
herger,  107  N.  Y.  S.  897,  123  App.  Div.  418. 

Sec.  654.     Petition  not  alleging  agreement  stated  was  made 
does  not  state  a  cause  of  action. 

Plaintiff  sUed  to  recover  commissions  for  effecting  an  ex- 
change of  property;  the  contract  provided  that  the  property 
conveyed  by  one  of  the  parties  was  to  be  subject  to  a  mort- 
gage as  by  agreement  to  be  made  between  the  parties ;  there  was 
no  allegation  that  such  agreement  was  ever  made,  or  that  there 
was  ever  an  actual  conveyance.  Held,  that  the  complaint  did 
not  state  a  cause  of  action.  Kahn  v.  Verschleiser,  109  N.  Y.  S. 
663,  57  Misc.  381. 

Sec.  655.  Petition  asking  judgment  for  excess  over  net  price, 
on  refusal  to  sell,  demurrable. 
An  owner  of  certain  realty  listed  it  for  sale  with  brokers, 
and  agreed  that  he  would  sell  the  property  so  listed  for  a  given 
sum  net  to  him ;  the  broker  procured  a  purchaser  able,  willing 
and  ready  to  buy  at  a  price  in  excess  of  the  amount  named, 
but  the  owner  refused  to  sell.  Held,  that  the  agreement  did 
not  import  an  offer  on  the  part  of  the  owner  to  pay  the  bro- 
kers the  excess  in  the  amount  M'hich  the  purchaser  was  willing 
to  pay  above  the  sura  named  for  which  the  owner  was  willing 
to  sell  it,  and  a  petition  asking  for  judgment  for  the  excess 
was  demurrable.  Matheney,  Beusly  and  Koon  v.  Godin,  130  Ga. 
713,  61  S.  E.  703.    See  also  Sec.  456. 


440  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  656.     Petition   sufficient   without   alleging  sale   for   the 
purpose  of  defrauding  plaintiff. 

The  petition  of  a  broker  for  commissions,  alleging  the  crea- 
tion of  an  agency  for  the  sale  of  land,  that  defendant  author- 
ized plaintiff  to  sell  it  for  a  certain  amount,  agreeing  to  pay 
him  a  fair  per  cent,  commission  therefor,  and  that  defendant 
made  a  special  agreement  in  writing  to  pay  him  such  commis- 
sion if  plaintiff  should  sell  or  negotiate  a  sale  to  B.,  and  that 
a  few  days  thereafter  defendant  himself  sold  and  conveyed 
the  land  to  B.  for  a  less  consideration,  and  that  said  purchaser 
was  procured  by  plaintiff,  under  the  terms  of  the  contract,  states 
a  cause  of  action,  without  any  allegation  that  defendant  made 
the  sale  with  evil  intent,  or  for  the  purpose  of  defrauding 
plaintiff.    Pierce  v.  Nichols  (Tex.  Civ.  App.  '08),  110  S.  W.  206. 

Sec.  656a.  Petition  held  not  defective  as  alleging  a  conlxact 
in  violation  of  broker's  duty. 
Defendant  B.,  with  whom  G.  had  listed  land  for  sale,  learn- 
ing that  plaintiff  desired  to  purchase  it,  requested  to  be  per- 
mitted to  make  tlie  sale,  and  informed  plaintiff  that  he  had 
G.  bound  to  sell  the  land  for  $2.50  per  acre  cheaper  than  G. 
would  sell  it  to  plaintiff.  Plaintiff  authorized  B.  to  offer  G. 
the  amount  he  asked  for  the  land,  less  $72  interest  on  the 
land,  if  it  could  not  be  bought  for  less,  B.  agreeing  not  to 
close  the  trade  with  any  other  parties  until  plaintiff  could 
buy  the  property  at  G.'s  price.  B.  informed  plaintiff  that  G. 
refused  to  take  less  than  $2,850  and  the  $72  interest,  and  that 
the  offer  at  that  price  would  be  kept  open  until  the  next  day; 
but,  pending  the  negotiations,  B.  and  the  two  other  defendants 
purchased  the  land  for  themselves,  to  plaintiff's  damage.  Held, 
that  a  petition  alleging  such  facts  was  not  defective  as  alleging 
a  contract  between  plaintiff  and  B.,  which  was  invalid  as  a 
violation  of  B.'s  duty  to  G.  Bass  v.  Talbert  (Tex.  Civ.  App. 
'08),  112  S.  W.  1077. 


CHAPTER  V. 


SECTION, 

657.  Interpleader,  when  allowed. 

658.  Interpleader,    when   not   en- 

titled thereto. 

659.  Demurrer    lies    to    petition 

against  broker  for  failure 
of  title,  when. 

660.  Demurrer   lies  to   allegation 

that  defendant  neglected 
to  collect  rents. 

661.  Demurrer    lies    to    petition 

where  only  partial  copies 
of  letters  constituting 
contract  are  given. 

662.  Demurrer    sustained    where 

plaintiff  sought  to  recover 
for  loss  of  commissions 
from  opposite  party. 


SECTION. 

663.  Demurrer  to  answer  lies  for 

not  showing  modification 
of  written  contract. 

664.  In   Nebraska   demurrer    lies 

to  petition  not  showing 
agent's  appointment  was 
in  writing. 

665.  Demurrer     held    improperly 

sustained  in  action  to  re- 
cover commissions  paid 
recreant  agent. 

666.  Motion      to      dismiss      held 

properly   denied. 

667.  Amendment    to    set    up    un- 

conscionable demand  re- 
fused. 


Sec.  657.    Interpleader,  when  allowed. 

Where  two  brokers  claim  the  commissions  for  the  same  sale 
of  land  an  interpleader  will  be  awarded  at  defendant's  in- 
stance. Dreycr  v.  Ranch,  3  Daly  (N.  Y.),  484,  42  How,  Pr. 
22;  Shipman  v.  Scott,  12  Civ.  Proc.  R.  18  (N.  Y.),  14  Daly,  233. 
Contra,  Brooke  v.  Smith,  13  Pa.  Cir.  Ct.  R.  557,  2  Pa.  Dist.  C. 
R.  767,  33  Weekly  Notes  Cas.  74.  In  an  action  by  a  real  es- 
tate broker  to  recover  commissions  on  a  sale  of  property,  de- 
fendant is  entitled  to  an  interpleader,  where  another  broker 
claims  commissions  for  the  sale  of  the  same  property  to  the 
same  purchaser  on  different  terms.  Shipman  v.  Scott,  14  Daly 
233  (N.  Y.). 

Tn  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  it  appeared  that  the  vendor  had  paid  another  with  knowl- 
edge of  the  broker's  claim;  there  was  no  error  in  an  instruc- 
tion that  the  vendor  was  protected  by  the  law,  which  author- 

441 


442  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

ized  him  to  pay  the  money  into  court  and  compel  the  broker 
and  the  other  claimant  to  litigate  their  rights,  since  the  Code 
of  Civil  Procedure,  Section  820,  provides  that  a  defendant 
may,  where  a  person  not  a  party  to  the  action  makes  a  demand 
against  him  for  the  same  do))t  or  property,  apply  for  an  order 
to  substitute  that  person  in  his  place,  and  to  discharge  him 
from  liability  to  f^itlier,  on  his  paying  into  court  the  amount 
of  his  debt.     Bickart  v.  Hofftnav,  10  N.  Y.  S.  472. 

In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
where  another  broker  claiming  the  same  commissions  is  sub- 
stituted as  defendant  for  the  principal,  he  having  paid  the 
commissions  into  court,  the  principal's  statement  to  one  of  the 
brokers,  in  the  other's  absence,  that  the  absent  broker  had  no 
authority  to  sell  the  land  with  a  builder's  loan,  is  properly 
excluded.     Shipman  v.  Frecli,  1  N.  Y.  S.  67. 

Sec.  658.    Interpleader,  when  not  entitled  thereto. 

In  an  action  by  a  broker  against  his  principal  for  a  commis- 
sion on  an  alleged  sale  of  land  made  by  plaintiff  for  defend- 
ant, the  latter  is  not  entitled  to  file  an  answer  in  the  nature 
of  a  bill  of  interpleader  by  alleging  that  another  broker  also 
claims  commissions  for  making  the  sale.  Hurtsook  v.  Chnss- 
man,  114  ^Mo.  App.  558,  90  S.  AY.  116. 

A  bill  of  interpleader  will  not  lie  at  the  suit  of  the  seller 
to  require  two  real  estate  agents  to  interplead  as  to  which 
should  have  commissions  on  a  sale  of  land,  since,  if  either  of 
them  was  entitled  to  commissions,  it  is  because  of  some  con- 
tract he  had  with  the  seller,  and  not  because  of  anything  that 
has  happened  betM'^een  themselves.  Sachsel  v.  Farrar,  35  111. 
App.  277. 

Wliere  plaintiffs  sue  defendant  for  a  broker's  commissions  for 
the  sale  of  certain  land  made  through  their  agency,  the  action 
by  a  third  person  against  defendant,  in  another  suit,  to  recover 
for  work,  labor  and  services  in  the  sale  of  the  land,  is  not  a 
demand  against  him  for  the  same  debt  within  the  Code  of  Civil 
Procedure,  Section  820,  allowing  an  order  of  interpleader  when 
competent  creditors  demand  the  same  debt.  Taylor  v.  Satterth- 
waite,  22  N.  Y.  S.  187,  2  Misc.  441. 


PLEADINGS,  PRACTICE,  ETC.  443 

Sec.  659.    Demurrer  lies  to  petition  against  broker  for  fail- 
ure of  title  when. 

In  an  action  against  a  real  estate  agent  for  failure  to  ex- 
amine the  title  of  land  purchased  by  him  for  plaintiff,  the 
plaintiff  alleged  that  the  grantor  had  mortgaged  the  land  and 
other  land,  and  that  the  mortgage  had  been  foreclosed  and  the 
land  in  question  sold,  without  saying  whether  the  grantor  still 
retained  title  to  the  other  lands  mortgaged  or  their  value,  or 
that  plaintiff  applied  for  an  order,  in  the  decree  for  foreclos- 
ure, that  such  other  lands  be  first  sold,  is  demurrable.  Sears 
V.  Forhes,  122  Tnd.  358,  23  N.  E.  773. 

Sec.  660.  Demurrer  lies  to  allegation  that  defendant  neg- 
lected to  collect  rents. 
In  an  action  against  an  agent  to  recover  for  rents  collected 
by  him,  and  for  damages  for  failure  to  collect  rents,  an  alle- 
gation that  defendant  has  '"neglected  said  business,  and  hence 
has  failed  to  collect  rents  with  diligence  he  might  have  col- 
lected," is  insufficient  and  demurrable.  Peeler  v.  Lathrop,  48 
Fed.  780. 

Sec,  661.  Demurrer  lies  to  petition  where  only  partial  cop- 
ies of  letters  constituting  contract  are  given. 
Where  a  petition  sets  forth  letters  alleged  to  have  been  writ- 
ten by  the  parties,  and  to  have  created  the  necessary  written 
contract  between  the  owner  of  the  land  and  the  broker,  but 
does  not  purport  to  give  full  copies,  neither  is  there  any  alle- 
gation that  the  letters  were  signed,  the  petition  is  subject  to 
demurrer.  David  Bradley  v.  Bower  (Neb.  Sup.  '04),  99  N. 
W.  490. 

Sec.  662.  Demurrer  sustained  where  plaintiff  sought  to  re- 
cover for  loss  of  commissions  from  opposite  party. 
A  complaint  alleged  employment  by  defendant  as  broker  to 
exchange  real  estate,  the  off'er  of  defendant's  property  under 
defendant's  instructions,  and  acceptance  of  such  offer,  the  noti- 
fication of  defendant  thereof,  and  that  defendant  refused  to 
proceed  with  the  exchange  and  claimed  the  reasonable  value 
of  such  services;  a  second  count  repeated  the  allegations  of 


444  AMERICAN    LAW   REL4.L   ESTATE   AGENCY. 

the  first,  and  claimed  damages  for  the  loss  of  commissions  to 
be  paid  by  the  owners  of  the  other  property  on  completion  of 
the  exchange.  JleM,  that  the  only  contract  alleged  between 
defendant  and  its  broker  was  an  employment,  that  the  em- 
ployer contracted  to  pay  the  reasonable  value  of  his  services, 
and  a  demurrer  to  the  second  cause  of  action,  on  the  ground 
that  it  did  not  state  a  cause  of  action,  was  properly  sustained. 
Mulhall  V.  Bradleij  <&  Currier  Co.,  63  N.  Y.  S.  782,  50  A.  D.  179. 
See  also  Sec.  25. 

Sec.  663.    Demurrer  to  answer  lies  for  not  showing  modifica- 
tion of  jwritten  contract. 

A  complaint  alleged  that  defc^ndant  agreed  in  writing  to 
pay  plaintiff  $300  if  plaintiff  would  obtain  a  loan  of  $3,000, 
and  that  plaintiff  had  fully  performed;  the  answer  alleged 
that  defendant  informed  plaintiff  that  defendant  must  have 
the  money  within  ten  days,  but  that  when  defendant  called  on 
the  parties  who  were  to  make  the  loan,  he  could  not  obtain 
the  money,  and  that  the  same  thing  occurred  several  times, 
and  that  the  negotiations  extended  over  much  more  than  ten 
days.  Held,  that  the  answer  was  demurrable  as  not  showing 
a  modification  of  the  written  contract,  and  in  that  it  did  not 
appear  when  the  limitation  began  to  run  and  when  it  terminated. 
Burr  V.  Penfield,  105  N.  Y.  S.  939,  55  Misc.  543. 

Sec.  664.  In  Nebraska,  demurrer  lies  to  petition  not  showing 
agent's  appointment  was  in  writing. 
In  an  action  to  recover-  compensation  for  services  rendered 
as  a  real  estate  broker,  a  petition  which  discloses  on  its  face 
that  the  contract  of  agency  was  not  in  writing  is  open  to  attack 
by  demurrer.    Smith  v.  Aultz,  78  Neb.  453,  110  N.  W.  1015. 

Sec.  665.  Demurrer  held  improperly  sustained  in  action  to 
recover  commissions  paid  recreant  agent. 
In  an  action  by  a  principal  against  his  agent  to  recover  in 
part  certain  commissions  alleged  to  have  been  erroneously  paid, 
where,  on  an  answer  and  counterclaim  for  the  balance,  the  orig- 
inal action  is  dismissed,  and  the  case  is  tried  on  the  counter- 
claim,  and   the    evidence    of    plaintiff    shows    that    defendant, 


PLE.ADINGS,    PRACTICE,    ETC.  445 

while  his  agent  in  the  purchase  of  lands,  unknown  to  him  re- 
ceived a  commission  from  the  agent  of  the  vendor,  is  a  suffi- 
cient defense  to  the  action  on  the  counterclaim,  and  a  demurrer 
to  such  evidence  was  improperly  sustained.  Plottner  v.  Chill- 
ian  (Okla  Sup.  '08),  95  P.  775. 

Sec.  666.     Motion  to  dismiss  held  properly  denied. 

In  an  action  by  a  real  estate  broker,  the  complaint  was  made 
to  set  forth  two  causes  of  action ;  the  first  alleged  that  the  con- 
tract between  the  parties  provided  for  a  commission  for  leasing 
and  a  commission  for  selling  the  property  in  question,  and 
the  fact  of  a  lease  procured  through  plaintiff;  while  the 
second  merely  alleged  that  the  tenant  thus  procured  also  took 
and  subsequently  exercised  an  option  to  buy.  Held,  that  as  all 
the  allegations  might  be  taken  together  as  stating  only  one 
cause  of  action  for  two  commissions,  the  motion  to  dismiss  the 
second  cause  of  action  was  properly  denied.  Downey  v.  Turner, 
51  N.  Y.  S.  105,  28  App.  Div.  491. 

Sec.  667.  Amendment  to  set  up  unconscionable  demand  re- 
fused. 
In  an  action  to  recover  $4,000,  the  residue  of  $7,600  broker- 
age for  negotiating  a  loan  of  $4,000  for  four  months,  the  'evi- 
dence did  not  support  the  allegations  of  the  complaint,  and 
the  plaintiff  was  non-suited.  Held,  that  it  was  immaterial 
that  defendant  did  not  specify  for  his  motion  a  non-suit,  as 
the  complaint  could  not  be  corrected  except  by  amendment, 
and  that  could  not  be  granted  because  the  demand  was  un- 
conscionable.   Daley  v.  Buss,  86  Cal.  114,  24  P.  867. 


CHAPTER  VI. 

SECTION.  SECTION. 

668.  Amendment  proper  to  allow       671.     Amendment,  error   to   aIlo\T 

to    plead    general    denial  to   allege   exercise   of  op- 

where  answer  set  up  stat-  tion    and    completion    of 

ute  of  frauds.  sale. 

669.  Amendment     allowing     cor-  672.     Amendment  to  answer   held 

rection     of     written    con-  improper  and  misleading, 

tract  does  not  cause  a  de-  673.     Amendment  of  complaint,  ■xt 

parture.  trial,    in    furtherance    of 

670.  Amendment,   when   error   to  justice,  held  proper. 

refuse.  674.     Amendment  properly  allowed 

plaintiff  to   claim    return 
of  commissions  for  fraud. 


Sec.  668.  Amendment,  proper  to  allow  to  plead  general  de- 
nial, where  answer  set  up  statute  of  frauds. 
Where  the  answer  alleged  that  the  contract  of  employment 
was  oral,  and  "barred  and  invalid  by  the  provisions"  of  a 
statute  declaring  that  "contracts  for  the  employment  of  an 
agent  to  sell  real  estate  for  commissions  are  invalid  unless  in 
writing  subscribed  by  the  party  to  be  charged,"  and  plaintiffs 
have  failed  to  show  a  written  contract  of  employment,  it  was 
not  error  to  permit  defendant  to  amend  his  answer  by  chang- 
ing the  admission  of  the  contract  of  emplojanent  into  a  denial 
of  the  same.  Jamison  v.  Hyde,  141  Cal.  109,  74  P.  695.  But 
see  Strunski  v.  Geiger,  101  N.  Y.  S.  786,  52  Misc.  134. 

Sec.   669.    Amendment   allowing  correction   of  written   con- 
tract does  not  cause  a  departure. 

Where  the  identity  of  the  transaction  on  which  plaintiffs 
based  their  claim  to  a  judgment  against  the  defendant  and 
the  form  of  the  action  as  one  sounding  in  contract  were  pre- 
served in  the  amended  petition,  and  this  is  the  best  and  most 
reasonable  test  by  which  to  determine  whether  or  not  an  amend- 
446 


PLEADINGS,  PRACTICE,  ETC.  447 

ment  of  a  pleading  substantially  changes  the  cause  of  action 
so  as  to  be  obnoxious  to  the  rule  against  departure,  the 
amendment  of  the  written  contract  does  not  constitute  a  de- 
parture. Stewart  v.  Van  Home,  91  Mo.  App.  647;  Sain  v. 
Rooney,  125  ^lo.  App.  176,  101  S.  W.  1127. 

Sec.  670.    Amendment,  when  error  to  refuse. 

"Where  the  court  voluntarily  permits  a  broker  suing  for  com- 
missions to  amend  his  complaint  to  show  an  assignment  to  him 
of  a  claim  for  commissions  by  A.,  it  is  error  to  refuse  to  allow 
him  to  amend  for  the  purpose  of  showing  an  assignment  of  a 
portion  of  the  claim  from  B.,  although  the  fact  of  such  as- 
signment appears  in  plaintiff's  bill  of  particulars.  Schlesinger 
V.  Jud,  70  N.  Y.  S.  616,  61  App.  Div.  453. 

Sec.  671.  Amendment,  error  to  allow  to  allege  exercise  of  op- 
tion and  completion  of  sale. 
Where,  in  an  action  for  commissions  for  a  broker's  services 
in  the  sale  of  a  mine,  a  non-suit  was  granted,  by  reason  of  the 
fact  that  the  option  to  purchase,  negotiated  by  the  broker, 
had  not  matured  when  suit  was  brought,  and,  pending  a  mo- 
tion for  a  new  trial  for  alleged  errors  of  law  occurring  at  the 
trial,  the  purchaser  complied  with  the  option  and  completed 
the  sale,  it  Avas  error  to  grant  a  subsequent  application  for 
a  new  trial,  in  order  to  permit  the  broker  to  allege  by  amend- 
ment the  completion  of  the  sale  and  recover  for  his  services. 
Laivrence  v.  Peterson,  .34  Wash.  1,  74  P.  1011. 

Sec.  672.  Amendment  to  answer  held  improper  and  mislead- 
ing. 
On  the  trial  of  a  cause  the  defendant  obtained  leave  to  amend 
his  answer  by  alleging  "that  after  making  the  sales  named 
they  (plaintiffs)  complained  that  the  prices  were  too  high 
as  named  by  defendant,  and  made  no  effort  to  sell  the  same, 
but  neglected  the  same,  to  the  defendant's  damage  and  in- 
jury." Tlcld,  that  the  matter  involved  in  the  amendment, 
not  being  pertinent  to  the  case,  was  calculated  to  raise  a  false 
issue  and  distract  the  attention  of  the  jury  from  the  real  ques- 
tion- for  their  determination.  Marshall  v.  Goble,  32  Neb.  9,  48 
N.  W.  898. 


448  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  673.    Amendment  of  complaint   at  trial,  in  furtherance 
of  justice,  held  proper. 

In  an  action  for  a  division  of  broker's  commissions,  it  was 
proper  to  permit  plaintiff  to  amend  his  complaint  at  the  trial 
by  inserting  an  allesration  that  defendant  was  tlie  agent  of 
a  certain  corporation,  within  certain  years  covering  the  trans- 
action in  question,  which  was  the  owner  of  the  property  sold, 
under  the  statute  authorizina:  the  court  to  permit  the  amend- 
ment of  pleadings  in  the  furtherance  of  justice.  McCleary  v. 
Willis,  35  Wash.  fi76,  77  P.  1073. 

Sec.  674.  Amendment  properly  allowed  plaintiff  to  claim  re- 
turn of  commissions  for  fraud. 
In  their  original  petition  plaintiffs  alleged  that  defendants 
engaged  to  sell  plaintiffs'  land  at  $4,000,  for  a  commission  of 
$125,  but  if  only  $3,900  could  be  obtained  the  commission  should 
be  $100;  the  land  sold  for  $4,000,  but  defendants  fraudulently 
represented  that  only  $3,900  was  obtained;  that  plaintiffs  paid 
defendants  a  commission  of  $100,  and  that  they  fraudulently 
converted  $100  of  the  price  paid  for  the  land,  and  asked  judg- 
ment for  $75;  later,  plaintiffs  were  permitted  to  amend  their 
petition  by  alleging  that  defendants  through  their  fraud  for- 
feited all  right  to  commissions,  and  asked  for  recovery  of  com- 
missions paid  and  the  remainder  paid.  Held,  that  the  amend- 
ment was  properly  allowed.  Deter  v.  Jackson,  76  Kan.  768, 
92  P.  546. 


CHAPTER  YII. 

DEFENSES. 

Sec.  675.    That  broker  did  not  use  best  efforts  insufficient. 

An  answer  does  not  state  a  defense  which  admits  the  eon- 
tract,  and  alleges  that  the  broker  did  not  use  his  best  efforts 
and  act  in  good  faith,  but  fraudulently  induced  the  defendant 
to  agree  to  an  exchange  which  he  knew  was  not  worth  as  much 
as  defendant's  property,  is  insufficient,  where  no  direct  aver- 
ment of  facts  showing  fraud  is  made.  Eol)h  v.  Johnson,  28  Ind. 
App.  665,  63  N.  E.  580 ;  Meijer  v.  Fayne,  43  N.  Y.  S.  133,  13 
N.  Y.  App.  Div.  332. 

Sec.  676.     Setting  up  violation  of  law  as  to  license  insufficient. 

An  answer  setting  up  the  violation  of  a  foreign  statute  re- 
quiring brokers  to  take  out  a  license  was  held  insufficient  to 
show  that  the  petition  was  founded  on  a  criminal  offense,  or 
that  the  broker's  contract  was  void  or  prohibited  by  statute, 
averments  to  that  effect  being  held  mere  incidents  and  deduc- 
tions from  the  statute,  and  not  allegations  of  facts.  Angell  v. 
Van  Schinck,  9  N.  Y.  S.  568,  56  Hun,  247.  Nor  can  an  agent 
sued  for  an  accounting  set  up  the  illegality  of  transaction  from 
which  the  money  was  realized.    IMechem  on  Ag.  See.  526. 

Sec.  677.    Affirmative  defense  not  pleaded  can  not  be  proved. 

An  affirmative  defense  to  be  proved  must  be  pleaded.  Kelly 
V.  Stone,  94  Iowa,  316,  62  N.  W.  842;  Scott  v.  Dillon,  109  N. 
Y.  S.  877,  58  Misc.  522. 

Sec.  678.    Defense  that  plaintiff  also  acted  for  customer,  to  be 
proved,  must  be  pleaded. 

The  defense  that  plaintiff  was  employed  by  both  parties  and 
his  double  employment  not  disclosed  must;  to  be  proved,  be 
pleaded.     Childs  v.  Ptomey,  17  Mont.  502,  43  P.  714;  Reese  v. 

449 


450  AMERICAN  IjAw  rp:al-  estate  agency. 

Garth,  36  Mo.  App.  641 ;  Harrell  v.  Bonfils  Imp.  Co.,  45  N.  Y. 
S.  227,  17  A.  D.  405;  Marks  v.  O'Donnell,  121  N.  Y.  S.  214. 
Compare  See,  869. 

Sec,  679,    Denying  agreement  will  not  admit  proof  of  double 
employment. 

Under  a  denial  of  an  agreement  for  the  payment  of  a  com- 
mission, the  broker's  double  employment  can  not  be  proved. 
McFee  v.  Horan,  40  Minn.  30,  41  N.  W.  239 ;  Smith  v,  Soosan, 
35  N.  Y.  S.  806,  24  Misc.  706;  Annahil  v.  Traverse  Land  Co. 
(Minn,  Sup.  '09),  121  N.  W.  233. 

Sec.  680.    Denying  allegations,  except  that  plaintiff  is  a  broker, 
admits  proof  of  double  employment. 

This  defense,  double  employment,  may  be  proved  under  a 
denial  of  all  the  allegations  of  the  complaint  except  that  plain- 
tiff was  a  broker.  Wolf  v.  Demhoskey,  74  N.  Y.  S.  465,  36 
Misc.  643,  66  A.  D.  428. 

Sec.  681,     Denying  performance  of  services  by  broker  admits 
proof  of  double  employment. 

Under  an  answer  merely  denying  the  performance  of  the 
services  by  the  broker  his  double  employment  may  be  proved. 
Norman  v.  Reuther,  54  N.  Y.  S.  152,  25  Misc.  161. 

Sec.  682.     That  services  were  rendered  under  an  express  con- 
tract inadmissible  under  general  denial. 

In  an  action  to  recover  the  reasonable  value  of  services  for 
procuring  a  purchaser  of  land,  a  defense  that  the  services  were 
rendered  under  an  express  contract  as  to  compensation  is  in- 
admissible under  the  general  denial,  the  action  being  to  recover 
upon  a  quantum  meruit;  if  defendant  relied  upon  an  express 
contract  in  respect  to  plaintiff's  corporation,  he  should  have 
pleaded  it.  Reishus-Bemer  Co.  v.  Benner,  91  Minn.  401,  98 
N.  W.  186.     Compare  Sec.  696. 

Sec.  683.     Under  general  denial  can  not  prove  transaction  can- 
celled by  consent  of  all. 

In  an  action  brought  by  real  estate  brokers  for  commissions, 
the   defendant   cannot    under  a   general   denial    be   permitted 


PI-EADINGS,    PRACTICE,   ETC.  451 

to  show  that  subsequent  to  the  ijrocureraent  of  the  customer 
and  the  execution  by  him  of  a  written  agreement  to  purchase, 
the  entire  transaction  including  the  agreement  to  purchase  was 
cancelled  by  consent  of  all  parties.  Bothschild  v.  Barrett,  47 
Minn.  28,  49  N.  W.  393. 

Sec.  684.     Under  a  general  denial  may  show  no  commissions 
chargeable  unless  excess  in  price  received. 

In  an  action  by  a  broker  for  commissions  for  selling  land 
under  an  alleged  contract  providing  for  a  specified  sum  as  com- 
missions, defendant  may  under  a  plea  of  general  denial  show 
that  plaintiff  agreed  to  charge  no  commissions  unless  the  land 
was  sold  for  more  than  a  stated  price,  since  that  is  not  affirma- 
tive matter  of  defense.  Wein  v.  Gilmer,  81  Tex.  345,  16  S. 
W.  1058. 

Sec.  684a.  Defense  that  contract  had  been  rescinded  admissi- 
ble, though  not  specially  pleaded. 
In  an  action  by  a  broker  for  compensation,  defense  that  the 
contract  between  the  broker  and  defendant  had  been  rescinded 
held  admissible,  though  not  specially  pleaded.  Mott  v.  Minor, 
(Cal.  App.  '09),  106  P.  244. 

Sec.  685.    Under  a  general  denial  can  not  prove  another  than 
plaintiff  introduced  the  purchaser. 

In  an  action  by  a  real  estate  broker  for  commissions,  where 
the  answer  is  a  general  denial,  the  proof  is  restricted  to  sus- 
taining or  controverting  the  facts  stated  in  the  petition,  and 
defendant  cannot  show  that  a  third  party  and  not  the  plaintiff 
introduced  the  purchaser  to  the  defendant.  St.  Felix  v.  Green, 
34  Neb.  800,  52  N.  W.  821 ;  Reese  v.  Garth,  36  Mo.  App.  641. 

Sec.  686.     Plaintiff  is  not  bound  to  negative  defense  of  aban- 
donment of  employment. 

In  an  action  for  a  broker's  commissions,  an  alleged  aban- 
donment of  the  broker's  employment  to  sell  is  matter  of  defense 
which  the  plaintiff  is  not  bound  to  negative.  Moore  v.  Boehm, 
91  N.  Y.  S.  125,  45  Misc.  622. 


452  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  687.     That  owner  offered  to  perfect  title  by  suit  at  law  no 

defense  to  action  by  broker  for  commissions. 

The  fact  that  the  owner  offered  the  prospective  purchaser 

to  perfect  his  title  by  suit  at  law  is  no  defense  to  an  action  for 

commissions.    Bruce  v.  Wolfe,  102  Mo.  App.  384,  76  S.  W.  723. 

Sec.  687a.     Sale  by  owner  at  higher  price  no  defense  to  broker's 
suit  for  commissions  for  producing  a  buyer. 

"Where  plaintiff  was  employed  by  an  executor  to  sell  land  of 
the  estate,  and  plaintiff  procured  a  purchaser  •  in  accordance 
with  the  required  terms,  the  fact  that  the  property  was  sold 
to  another  offering  a  higher  price  was  no  defense  to  plaintiff's 
right  for  commissions.  Hickman-Coleman  Co.  v.  Leggett,  (Cal. 
App.  '09),  100  P.  1072.     Compare  Sees.  15,  454 

Sec.  688.     When  sued  for  commissions  can  not. set  up  defect 
which  stated  at  the  time  might  have  been  cured. 

Where  one  who  employed  a  broker  to  purchase  for  him  land 
at  a  specified  price,  absolutely  refused  to  complete  the  transac- 
tion, he  cannot,  at  the  trial  of  the  broker's  action  for  commis- 
sions, set  up  a  defect  in  the  title  which  if  exprorsed  at  the 
time,  might  have  be^n  obviated.  Auten  v.  Jacohus,  47  N.  Y. 
S.  1119,  21  Misc.  632,  affirming  46  N.  Y.  S.  681,  20  Misc.  669. 

Sec.  689.    Defendant  can  show  another  agent  made  the  sale. 

In  an  action  to  recover  commissions  for  a  sale  of  real  estate, 
defendant  can  show  that  another  authorized  agent  made  the  sale. 
Goin  V.  Hess,  102  Iowa  140,  71  N.  W.  218;  Cook  v.  Whiting, 
(Iowa  Sup.  '09),  122  N.  W.  835;  Russell  v.  Poor  (Mo.  App. 
'08),  115  S.  W.  1. 

Sec.  689a.  What  purchaser  may  show  in  defense  of  action  to 
dispossess. 
Where  the  agent  having  authority  to  sell  lands  for  his  prin- 
cipal makes  a  contract  in  writing  for  a  sale  of  the  same  in 
his  own  name  and  puts  the  purchaser  in  possession  thereof,  who 
makes  thereon  lasting  and  valuable  improvements,  and  the 
purchaser  is  afterward  sued  by  the  principal  for  the  recovery 
of  the  land,  the  purchaser  may,  with  proper  allegations  in  his 


PLEADINGS,  PRACTICE,  ETC.  453 

answer,  show  the  intention  of  the  parties  to  have  been  that 
the  principal  should  be  bound  by  the  contract.  Butler  v.  Kaul- 
back,  8  Kan.  668.  Compare,  Taylor  v.  Guest,  45  How.  Pr.  (N. 
Y.)  276. 

Sec.  690.     That  authority  was  conditional  on  defendant's  abil- 
ity to  buy  another  lot. 

In  an  action  by  a  real  estate  agent  for  commissions  for  a 
sale  of  land,  the  defense  was  that  the  authority  to  sell  was 
conditioned  on  defendant's  being  able  to  purchase  a  certain 
other  lot.  Held,  That  it  was  competent  for  defendant  to  show 
that  he  made  reasonable  effort  to  make  such  purchase,  as 
such  proof  showed  his  good  faith.  Wilso7i  v.  Klein,  90  Ala.  518, 
8  S.  130. 

Sec.  691.    That  contract  obtained  was  provisional  and  no  lease 
was  made. 

Plaintiffs,  real  estate  agents,  were  to  receive  certain  com- 
missions for  services  in  securing  a  lessee  for  defendant  upon 
agreed  terms,  and  they  procured  an  informal  agreement  for 
a  lease  to  be  signed  by  defendant  and  the  applicant  for  the 
lease.  Held,  That  to  defeat  an  action  by  plaintiff  for  commissions 
defendant  might  show  by  parol  that  the  contract  was  merely 
provisional,  and  did  not  express  all  the  terms  of  the  lease  to 
be  entered  into  by  the  parties,  and  that  the  lease  was  never 
consummated,  because  no  final  agreement  was  ever  made  be- 
tween the  defendant  and  the  proposed  lessee.  Buxton  v.  Beal, 
49  Minn.  230,  51  N.  W.  918 ;  Laws  v.  Schmidt,  80  Ohio  St.  108, 
88  N.  E.  319. 

Sec.  691a.    Defendant,  under  a  general  denial,  may  show  that 
contract  was  merely  an  option. 

Defendant,  under  his  general  denial,  in  an  action  for  broker's 
commissions,  in  which  the  complaint  avers  that  plaintiffs  pro- 
cured R.  to  purchase  the  premises  of  defendant  for  an  agreed 
amount,  and  that  said  contract  was  reduced  to  writing  signed 
by  defendant,  may  show  that  the  contract  made  by  defendant 
and  R.  was  merely  an  option.  Brown  v.  Wisner  (Wash.  Sup. 
'09),  99  P.  581. 


454  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Sec.  691b.  Evidence  showing  contract  an  option  and  not  a  sale. 
The  rule  excluding  parol  evidence  to  varj''  a  written  contract 
obtains  only  between  the  parties  thereto,  or  their  successors 
in  interest,  so  that  defendant,  in  an  action  for  a  broker's  com- 
missions for  procuring  a  purchaser  by  R  of  land  from  de- 
fendant, may  show  that  the  contract  between  R.  and  defendant, 
even  though  in  form  one  of  sale,  was  merely  an  option  and 
net  acted  on  by  R.    Broivn  v.  Wisner,  51  Wash.  509,  99  P.  581. 

Sec.  692.    That  defendant  sold  premises  before  sale  by  plaintiff 
inadmissible  under  a  general  denial. 

"Where  the  answer  is  a  general  denial,  the  issue  presented  by 
the  pleading  is  the  truth  of  the  allegations  of  the  petition ;  under 
such  an  issue  affirmative  proof  in  favor  of  the  defendant  cannot 
be  received,  and  an  instruction  submitting  such  proof  to  the 
jury  is  erroneous;  hence,  evidence  offered  by  defendant  that 
he  sold  the  premises  to  other  parties  before  the  sale  by  plaintiff 
is  inadmissible.  Griffith  v.  Woolworth,  44  N.  W.  1137,  28 
Neb.  715. 

Sec.  693.  Defense  of  collusion  with  proposed  purchaser  and 
bad  faith  allowable. 
In  an  action  for  broker's  services,  an  answer  alleging  that 
the  proposed  purchaser  was  plaintiff's  uncle,  and  that  they 
entered  into  collusion,  whereby  the  uncle  was  to  pretend  to 
defendant  that  he  was  ready  and  walling  to  purchase  the  land 
and  pay  for  the  same  in  cash,  and  that  defendant  under  the 
belief  that  the  proposed  purchaser  was  acting  in  good  faith 
fixed  a  day  and  place  for  the  execution  of  the  deed,  when 
plaintiff  and  his  uncle  questioned  the  description  for  the  pur- 
pose of  delay,  and  that  before  the  adjourned  day  fixed  for  the 
execution  of  the  deed,  defendant  was  informed  that  the  pro- 
posed purchaser  would  not  take  the  land,  until  he  had  had  an 
opportunity  of  reinspecting  it,  which  he  never  did,  stated  a 
sufficient  defense.  McAfee  v.  Bending,  36  Ind.  App.  628,  76 
N.  E.  412. 

Sec.   693a.    Defense  of  fraudulent  representations   of  agent 
available  against  his  assignee. 

It  is  a  good  defense  for  procuring  a  contract  for  defendant 
that  the  services  were  rendered  without  any  effort  or  influence 


PLEADINGS,  PEACTICE,  ETC.  455 

of  plaintiff's  assignor,  and  that  the  agreement  relied  on  by- 
plaintiff  was  induced  by  his  assignor's  fraudulent  representa- 
tions.   Sand  V.  Kenmj  Mfg.  Co,,  113  N.  Y..S.  972. 

Sec.  693b.    Voluntary  payment  by  the  defrauded  party  no 
defense  to  agent  sued  for  the  deceit  and  fraud. 

The  voluntary  payment  of  the  balance  of  the  price  of  the 
mine  bought  by  his  agent,  after  the  purchaser  entered  into 
and  partly  executed  the  contract  to  buy  the  property,  is  no 
defense  to  the  agent  sued  for  deceit  and  fraud  in  the  trans- 
action. Gt.  Western  Gold  Co.  v.  Chambers  (Cal,.  Sup.  '09), 
101  P.  6. 

Sec.  694.  After  contract  accepted  by  vendor  latter  can  not 
plead  irresponsibility  of  purchaser  to  action  by  broker  for 
fees. 
Where  a  broker,  under  a  general  contract  of  employment  to 
sell  real  estate,  obtained  a  purchaser  satisfactory  to  his  principal 
who  made  an  enforceable  contract  of  sale,  without  being  induced 
so  to  do  by  any  representations  of  the  broker  as  to  the  pur- 
chaser's responsibility,  and  without  any  bad  faith  on  the 
broker's  part,  the  latter  was  entitled  to  commissions,  though, 
without  the  principal's  fault,  the  vendee  failed  to  perform  the 
contract  of  sale,  because  of  the  lack  of  sufficient  financial  respon- 
sibility at  the  time  the  contract  was  executed.  Alt  v.  Doscher, 
186  N.  Y.  566,  79  N.  E.  1100;  /.  B.  Watkin's  Ld.  Mfg.  Co.  v. 
Thetford  (Tex.  Civ.  App.  '06),  96  S.  W.  72;  Sanderson  v.  Wells- 
ford  (Tex.  Civ.  App.  '09),  116  S.  W.  382.  Contra,  Dotson  v. 
MilUken,  27  App.  (D.  C),  500.     See  also  Sees.  726,  842. 

Sec.  694a.  Proofs  available  to  defendant  under  his  denial  that 
customer  was  able  to  exchange. 
In  an  action  by  brokers  for  services  in  negotiating  an  ex- 
change of  real  property,  which  Avas  not  carried  out,  even  if 
plaintiffs  made  prima  facie  proof  of  title  in  the  customer  offered 
by  them,  defendant  under  his  denial  that  the  customer  was 
able  to  exchange,  could  prove  that  he  was  not  able,  because  he 
had  no  title  to  part  of  the  real  property  proposed  to  be  ex- 
changed, and  that  it  was  incumbered  by  a  party-wall  which 
made  it  unmarketable.    Mntchnick  v.  Davis,  114  N.  Y.  S.  997. 


456  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

Sec.  695.  Answer  averring  willingness  to  sell  on  terms  set 
forth  states  no  defense. 
In  an  action  to  cecover  an  agent's  commissions  for  finding 
a  purchaser  of  real  estate,  where  the  plaintiff  alleged  that 
defendant  had  agreed  to  pay  a  certain  sum  for  the  finding  of 
a  purchaser  at  $100  per  acre,  and  that  plaintiff  found  such 
purchaser,  who  offered  to  purchase  and  pay  for  the  land  either 
in  cash  or  on  such  terms  as  the  defendant  might  desire  as  to 
payment,  an  answer  denying  that  defendant  ever  employed 
plaintiff,  but  averring  a  Avillingness  to  sell  and  convey  to  the 
alleged  purchaser  at  $100  per  acre,  payable  in  five  equal  install- 
ments, bearing  interest  at  ten  per  cent,  per  annum  until  paid, 
principal  and  interest  to  constitute  part  of  the  purchase  price 
of  the  land,  constitutes  no  defense  to  the  action,  the  allegation 
in  the  complaint  that  the  purchaser  offered  such  terms  as  the 
defendant  might  desire  as  to  payment  being  mere  surplusage. 
Guthrie  v.  BrigJit,  26  Ky.  L.  R.  1021,  82  S.  W.  985. 

Sec.  695a.    It  is  no  defense  that  the  broker  agreed  to  divide 
his  commissions  with  third  persons. 

It  is  no  defense  to  an  action  for  commissions  on  a  sale  of 
land  that  the  broker  agreed  with  third  persons  that  they  should 
all  endeavor  to  make  a  sale,  and  would  divide  the  commissions 
in  the  event  thereof.    Ross  v.  Can;  (N.  ^L  Sup.  '09),  103  P.  307. 

Sec.  696.     Under  general  denial  can  prove  contract  made  and 
non-performance  by  plaintiff. 

In  an  action  on  an  express  contract  for  commissions  for  pro- 
curing purchasers  of  land,  the  defendant  was  entitled  under 
a  general  denial  to  offer  testimony,  not  only  denying  the 
contract  as  claimed,  but  also  proving  the  contract  which  they 
in  fact  made,  and  non-performance  thereof  by  the  plaintiff. 
Tracey  Land  Co.  v.  Polk,  etc.  Co.,  131  Iowa  40,  107  N.  W.  1029 ; 
Harris  v.  Moore,  134  Iowa,  704,  112  N.  W.  163;  Weaver  v. 
Richards,  156  Mich.  320.     Compare  Sec.  682. 

Sec.  697.     Statute  of  frauds  not  available  as  a  defense  to  action 

by  broker  for  commissions. 

In  an  action  to  recover  commissions  or  compensation  for  a 

sale  of  land  by  a  broker,  that  the  contract  with  the  broker  was 

within  the  statute  of  frauds  is  no  defense.    Stephens  v.  Bailey, 


PLEADINGS,  PRACTICE,  ETC.  457 

149  Ala.  256,  42  S.  740;  Kepner  v.  Ford  (N.  Dak.  Sup.  '07),  111 
N.  W.  619 ;  Pope  V.  Caddell,  31  Ky.  L^  R.  412.  102  S.  W.  327. 

Sec.  698.    Answer  that  "sale  was  not  consummated  and  plain- 
tiff not  entitled  to  recover"  no  defense. 

In  an  action  to  recover  a  commission  for  a  sale  of  defendant's 
property,  an  allegation  in  the  answer  that  the  sale  "was  not 
consummated,  by  reason  of  which  plaintiffs  are  not  entitled  to 
recover  of  defendants,"  states  no  defense,  as  such  failure  may 
have  resulted  from  defendants'  fault,  they  having  admitted  that 
plaintiff  furnished  them  a  purchaser.  Atterhury  v.  Hopkins, 
122  Mo.  App.  172,  99  S.  W.  n. 

Sec.  699.     To  establish  illegality  of  oral  appointment  of  broker 
the  defense  must  be  specially  pleaded. 

When,  in  an  action  for  commissions  earned  by  a  broker  under 
an  oral  contract  of  employment  to  procure  a  purchaser  of  real 
estate,  no  illegality  in  the  contract  appeared  on  the  face  of 
the  complaint  or  in  the  evidence  to  sustain  the  action,  the 
defense  that  under  the  penal  code  a  written  authorization  to 
procure  a  purchaser  of  real  estate  is  necessary  must  to  be 
available  be  specially  pleaded.  Strunski  v.  Geiger,  101  N.  Y. 
S.  786,  52  ]\Iisc.  134.  Compare,  Jamison  v.  Hyde,  141  Cal.  109, 
74  P.  695. 

Sec.  700.  Where  agent  acted  for  both  parties  by  consent,  al- 
legation of  bad  faith  by  defendant  states  no  defense. 
The  only  fraud  charged  by  the  answer,  in  an  action  by  real 
estate  agents  for  commissions  for  trading  defendant's  land  being 
that  plaintiffs  were  in  the  employ  of  the  other  party  to  the 
trade  when  they  were  employed  by  defendants,  which  fact  of 
dual  employment  plaintiffs  by  their  reply  admitted  and  justi- 
fied, on  the  ground  that  it  was  with  the  knowledge  and  consent 
of  both  parties,  defendants  cannot  avail  themselves  of  the 
defense  that  plaintiffs  acted  in  bad  faith  toward  both  parties 
by  each  attempting  to  testify  as  to  the  value  of  the  land  of 
the  other.     Cook  v.  Piatt,  n^ ^lo.  App.  553,  104  S.  W.  1131. 

Sec.  700a.     Broker 's  refusal  to  pay  part  of  costs  no  defense  to 
action  for  his  commissions. 

Where  a  broker  bound  a  purchaser  by  an  enforceable  contract, 
the  broker's  refusal  to  fulfill  a  promise  to  pay  one-half  of  the 


458  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

costs  of  the  seller's  suit  to  enforce  the  contract  was  no  defense 
to  the  broker's  right  to  commissions.  Pinkerton  v.  Hudson 
(Ark.  Sup.  '08),  113  S.  W.  35. 

Sec.  701.     Put  in  issue  by  general  denial,  and  not  necessary  to 
plead  sale  not  consummated. 

Wliere,  in  an  action  for  a  real  estate  broker's  commissions 
to  be  paid  on  securing  a  purchaser,  plaintiff  relied  upon  an 
agreement  for  a  sale  made  by  the  OMner  to  a  prospective  pur- 
chaser secured  by  the  broker,  it  was  not  necessary  for  the  owner 
to  plead  that  the  contract  was  not  consummated  by  a  sale, 
his  general  denial  putting  in  issue  the  fact  of  a  sale,  that  being 
necessary  to  entitle  the  broker  to  recover.  Wilson  v.  Ellis,  (Tex. 
Civ.  App.  '08),  106  S.  W.  1152;  Arthur  v.  Porter  (Tex.  Civ. 
App.  '09),  116  S.  W.  127. 

Sec.  702.    That  interest  terms  differed  no  defense  where  plain- 
tiff offered  to  pay  the  difference. 

Where  brokers  procured  a  purchaser  ready,  able  and  willing 
to  purchase  on  defendant's  terms,  it  was  no  defense  to  an 
action  for  commissions  that  the  memorandum  of  sale  did  not 
provide  for  exactly  the  same  interest  terms  that  defendant  de- 
manded, plaintiffs  having  offered  at  the  time  to  pay  the  differ- 
ence. Bicker  v.  Post,  110  N.  Y.  S.  79,  125  App.  Div.  607.  Com- 
pare, Young  v.  Ruhivedel,  119  IMo.  App.  231,  96  S.  W.  228. 

Sec.  703.  Averment  not  objectionable  as  amounting  to  the  gen- 
eral issue. 
A  plea  to  a  declaration  by  real  estate  brokers  for  commissions 
averring  that  the  brokers  did  not  sell  the  property  to  the  pur- 
chasers named  for  the  owners  for  the  amounts  named,  and  that 
the  purchasers  did  not  pay  the  owners  such  amount  for  the 
property,  and  that  the  owners  never  were  indebted  as  averred, 
was  not  bad  as  amounting  only  to  the  general  issue,  as  a  plea 
is  not  objectionable  on  that  ground,  unless  it  sets  up  matters 
of  fact  merely  amounting  to  a  denial  of  such  allegations  in 
the  declaration  as  on  general  issue  would  have  to  be  proved  to 
support  the  case.    Seff  v.  Brotman,  70  A.  106,  108  Md.  278. 


CHAPTER  VIII. 

SECTION.  SECTION. 

704,   704a.     What  are   not  depar        ~05  to  728c,  inclusive.     Examples 
tures.  on  the  question  of  burden 

of  proof. 

Sec.  704.    What  are  not  departures. 

Where  defendant  agreed  to  pay  commissions  for  sales  of 
lands  to  customers  ' '  procured ' '  by  plaintiffs,  an  instruction  that 
defendants  were  liable  if  plaintiffs  "furnished"  customers,  is 
not  a  departure  from  the  issues  made.  Boyd  v.  Watson,  101 
Iowa  214,  70  N.  W.  120.  A  petition  alleged  that  defendant 
promised  to  pay  plaintiff  and  another  a  commission  for  selling 
defendant's  farm,  but  refused  to  pay  the  same  on  sale  of  the 
farm,  an  amended  petition  alleged  in  the  first  count  that  de- 
fendant had  promised  to  pay  plaintiff  a  commission  for  selling 
the  farm,  but  had  paid  one-half  thereof;  the  second  count  al- 
leged that  defendant  agreed  to  pay  plaintiff  and  another  a 
certain  sum  each  for  selling  the  farm,  but  that  on  sale  thereof 
refused  to  pay  plaintiff  his  part  of  the  commissions.  Held,  that 
the  amended  petition  did  not  embrace  a  different  cause  of  action 
from  that  pleaded  in  the  original  petition,  there  being  nothing 
in  either  of  the  pleadings  to  indicate  that  plaintiff  intended  to 
charge  the  existence  of  a  partnership  relation  between  himself 
and  the  other  agent  acting  with  him  in  selling  the  farm.  Sain 
V.  Rooney,  125  Mo.  App.  176,  101   S.  W.  1127. 

Sec.  704a.    No  variance  between  allegations  and  proof. 

In  an  action  to  recover  commissions  for  procuring  a  loan, 
there  is  no  variance  between  an  allegation  that  plaintiff  pro- 
cured a  loan  for  defendant,  and  evidence  that  at  defendant's 
request  and  on  his  promise  to  pay  a  commission,  plaintiff  pro- 
cured a  loan  to  be  made  by  a  corporation  formed  by  defendant, 
and  a  common  count  that  plaintiff  performed  work  for  defend- 
ant, of  the  price  and  value  of  a  certain  sum,  authorized  a  finding 

450 


460  AMERICAN    liAW   REAL   ESTATE   AGENCY. 

that  defendant  agreed  to  pay  plaintiff  the  usual  commissions  or 
the  reasonable  value  of  his  services.  Williams  v.  Clowes,  75 
Conn.  155,  52  A.  820. 

Sec.  705.    Burden  of  proof  on  defendant  that  broker's  author- 
ity was  revoked. 

One  who  has  given  a  broker  authority  until  further  notice  to 
sell  land  has  the  burden  of  proving  that  he  revoked  the  au- 
thority before  the  broker  found  a  purchaser.  Bourke  v.  Van 
Keuren',  20  Colo.  95,  36  P.  882 ;  Clements  v.  Stapleton,  136  Iowa 
137,  113  N.  W.  546. 

Sec.  706.     Burden  on  plaintiff  to  show  double  employment  was 
with  defendant's  knowledge  and  consent. 

The  burden  of  showing  that  one  employing  a  broker  to  find 
a  customer  to  exchange  real  estate  with  him  had  notice  that  the 
broker  was  to  receive  a  commission  from  the  customer  is  on 
the  broker.  Bannan  v.  Prentis,  124  j\Iich.  417,  83  N.  W.  102; 
Rohinson  v.  Clock,  55  N.  Y.  S.  976,  38  App.  Div.  67.  Compare, 
Redmond  v.  Henke,  137  Iowa,  228,  114  N.  W.  885. 

Sec.  706a.  Burden  on  broker  to  show  not  only  that  the  seller 
knew  of  double  agency,  but  the  purchaser  as  well. 
Whenever  a  real  estate  broker,  who  is  representing  the  pur- 
chaser may  recover  commissions  from  the  seller,  the  broker 
must  prove,  not  only  that  the  seller,  but  the  purchaser  as  well, 
was  aware  of  his  double  agency,  and  that  the  trade  was  made 
with  such  knowledge.  Denison  v.  Gault,  132  Mo.  App.  301,  111 
S.  W.  844.     See  also  Sec.  559. 

Sec.  707.  Burden  of  agent's  want  of  authority  is  on  party 
making  allegation. 
The  burden  of  proving  want  of  authority,  where  the  agent 
executes  a  contract  in  the  name  of  the  principal,  lies  on  the 
party  claiming  the  want  of  authority.  Plumb  v.  Milk,  19  Barb. 
(N.  Y.)  74. 

Sec.  708.     Burden  is  on  agent  to  establish  fairness  in  transac- 
tion. 

The  burden  of  proof  is  on  the  agent  to  establish  his  fairness 
in  the  transaction.     Rubidoeux  v.  Parks,  48  Cal.  215;  Brown 


PLEADINGS,  PRACTICE,  ETC.  461 

V.  Post,  1  Hun  (N.  Y.),  303;  Neely  v.  Anderson,  2  Strob.  (S. 
C.)  Eq.  262;  Condit  v.  Blackwell,  2'2  N.  J.  Eq.  481;  Alwood  v. 
Mansfield,  59  111.  496;  Hanna  v.  Haijnes,  42  Wash.  284,  84  P. 
861;  Walker  v.  Carrington,  74  111.  446;  Lienwen  v.  Kline  (Iowa 
Sup.  '09),  120  N.  W.  312.  Contra,  Buckingham  v.  Harris,  10 
Colo.  455,  15  P.  817;  Pollatschek  v.  Goodwin,  40  N.  Y.  682, 
17  Misc.  587. 

Sec.  709.     Burden  of  proof  as  to  knowledge  on  part  of  prin- 
cipal of  dual  agency. 

The  burden  of  proving  knowledge  on  the  part  of  the  principal, 
in  some  States,  rests  on  the  agent.  Young  v.  Trainor,  158  III. 
428,  42  N.  E.  139;  Lynch  v.  Fallon,  11  R.  I.  311;  Jansen  v. 
Williams,  36  Neb.  869,  55  N.  W.  279.  In  Georgia,  the  burden 
of  proving  knowledge  on  the  part  of  the  principal  rests  on  tlie 
latter,  and  when  dual  agency  was  relied  on  it  was  necessary 
for  the  defendants  to  prove  not  only  the  fact  of  such  agency,  but 
that  the  same  was  not  known  to  both  parties.  Bed  Cypress 
Lumber  Co.  v.  Perry,  118  Ga.  876,  45  S.  E.  674;  Eansley  v. 
Monroe^  103  Ga.  279,  29  S.  E.  928. 

Sec.  710.     Burden  on  selling  broker  that  principal  consented  to 
the  broker  purchasing  the  property. 

If  an  agent  employed  to  sell  property  buys  it  for  himself,  in 
an  action  for  compensation  the  burden  of  proving  that  the 
principal  had  knowledge  of  the  facts  and  consented  to  the  sale 
rests  on  the  agent.  Janson  v.  Williams,  36  Neb.  869,  55  N.  W. 
279,  20  L.  R.  A.  207;  Grant  v.  Hardy,  33  Wis.  668. 

Sec.  711.     Burden  on  broker  to  prove  authority  of  owiier's 
agent  to  employ  him. 

If  the  contract  is  executed  by  the  owner's  agent,  in  order  to 
recover  commissions  the  broker  must  prove  the  agent's  author- 
ity to  make  it.    Stinde  v.  Scharff,  36  Mo.  App.  15. 

Sec.  712.     Broker  bears  the  burden  of  proving  his  employment. 
In  an  action  by  a  l)roker  against  his  principal  for  compensa- 
tion, plaintiff  })ears  the  burden  of  proving  by  a  preponderance 
of  the  evidence  that  he  was  employed  by  defendant  to  find  a 


462  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

purchaser  and  that  he  found  a  responsible  one.  Hammond  v. 
Mitchell,  61  111.  App.  144;  Harrison  v.  Prestroski,  97  Iowa  166, 
66  N.  W.  93 ;  Chilton  v.  Butler,  1  E.  D.  Smith,  150 ;  Schatzherg 
V.  Grosworth,  84  N.  Y.  S.  259 ;  Harrel  v.  Veath,  13  N.  Y.  St. 
738;  Summa  v.  DeresJciawicz  (Conn.  Sup.  '09),  74  A.  906;  Bal- 
lentine  v.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037;  Bice  v. 
Neuman,  115  N.  Y.  S.  83. 

Sec.  712a.  What  broker  must  show  to  recover  on  an  implied 
contract. 
A  real  estate  broker  seeking  to  recover  commissions  for  pro- 
curing a  purchaser  of  real  estate,  under  an  implied  contract, 
must  show  that  he  rendered  his  services  under  an  honest  belief, 
reasonably  indicated  by  the  owner's  conduct,  that  a  request  had 
been  made  of  him  by  the  owner  to  render  the  services,  or  under 
such  circumstances,  in  the  absence  of  a  request,  as  indicated 
that  he  expected  to  be  paid  therefor,  and  that  the  owner,  know- 
ing the  circumstances,  availed  himself  of  the  benefit  of  the 
services  rendered.  Summa  v.  DeresKiawicz,  (Conn,  Sup.  '09), 
74  A.  906. 

Sec.  713.     Broker  who  claims  must  prove  exclusive  right  of 
sale. 

A  real  estate  broker  who  founds  his  right  of  action  for  com- 
missions on  the  owner's  agreement  to  give  him  the  sole  and 
exclusive  right  of  sale  of  the  property,  and  alleges  a  breach  of 
such  agreement  and  a  sale  effected  by  the  owner,  must  prove  that 
such  an  agreement  was  entered  into.  Wychoff  v.  Taylor,  13 
Daly  (N.  Y.)  564.     See  also  Sec.  13. 

Sec.  714.  Broker  must  prove  direct  employment,  ordinary- 
agency  of  wife  for  husband  insuflBcient. 
To  sustain  an  action  for  commissions,  the  broker  must  show 
direct  employment  by  the  principal  or  a  direct  authority  for 
him  to  treat  with  the  agents  of  the  principal,  and  if  the  agency 
of  a  wife  for  her  husband  be  relied  upon,  special  authority  or 
ratification  must  be  shown.  Harper  v.  Goodall,  10  Abb.  N. 
Cas.  (N.  Y.)  161,  62  How.  Pr.  288;  Harrell  v.  Tieth,  13  N.  Y. 
St.  738. 


PLEADINGS,  PRACTICE,  ETC.  463 

Sec.  715.    Burden  of  proof  on  defendant  claiming  contract 
signed  conditionally. 

Wliere  plaintiff,  in  an  action  to  recover  commissions  for  pro- 
curing a  purchaser  for  real  estate,  proves  the  execution  of  the 
contract  of  purchase  which  defendant  claims  was  signed  condi- 
tionally, the  burden  of  proving  such  defense  is  on  the  defendant. 
Folinshee  v.  Smcyer,  36  N.  Y.  S.  405,  15  IMisc.  293. 

Sec.  716.     Burden  is  on  plaintiff  to  show  performance  of  obli- 
gations assumed. 

Plaintiff  bears  the  burden  of  proving  that  he  performed  his 
obligation  by  effecting  a  purchase,  procuring  a  responsible  pur- 
chaser or  making  an  enforceable  contract  of  sale  in  accordance 
with  his  instructions.  Hammond  v.  Mitchell,  61  111.  App.  144; 
Leahy  v.  Hair,  33  111.  App.  461 ;  Davis  v.  Gassette,  30  111.  App. 
41;  Pratt  V.  Hotchkiss,  10  111.  App.  603;  Peet  v.  Sherwood,  47 
Minn.  347,  50  N.  W.  241,  929 ;  Young  v.  Ruhwedel,  119  :Mo.  App. 
231,  96  S.  W.  228 ;  Kirvin  v.  Barney,  57  N.  Y.  S.  812,  27  Misc. 
181;  Kirvin  v.  Barney,  61  N.  Y.  S.  122,  29  Misc.  614;  Cooper 
V.  Lawrence,  110  N.  Y.  S.  238;  Geigcr  v.  Keiser  (Colo.  Sup.  '10), 
107  P.  267 ;  KalJcstein  v.  Jackson,  116  N.  Y.  S.  302. 

Sec.  717.  If  principal  refuses  customer  broker  must  prove  his 
ability  to  perform. 
If  the  principal  refuses  to  accept  the  customer  furnished  by 
the  broker,  in  an  action  to  recover  commissions  the  broker  must 
prove  the  customer's  ability  to  complete  the  transaction.  Col- 
burn  V.  Seymour,  32  Colo.  430,  76  P.  1058;  Fay  v.  By  an  (111. 
Sup.  '09),  88  N.  E.  974;  Bent  v.  Powell,  93  Iowa  711,  61  N.  W. 
1043 ;  Russell  v.  Hurd,  113  111.  App.  63 ;  Coleman  v.  Meade,  13 
Bush  (Ky.)  358;  Staehlin  v.  Kramer,  118  Mo.  App.  329,  94 
S.  W.  785;  Clark  v.  ^Yihon,  41  Tex.  Civ.  App.  450,  91  S.  W. 
627.  Burden  on  defendant  to  prove  'irresponsibility  of  the 
purchaser.    Cook  v.  Kronke,  4  Daly  (N.  Y.),  268. 

Sec.  718.     Purchaser  asking  specific  performance  must  show 
validity  of  broker's  authority. 

Where,  in  a  suit  to  set  aside  a  contract  for  the  sale  of  land 
as  a  cloud  on  the  title,  the  purchaser  insisted  on  a  decree  for 
specific  performance,  and  the  broker  a  judgment  for  commis- 


464  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

sions,  the  burden  of  showing  the  validity  of  the  broker's  au- 
thority to  make  the  sale  rested  on  the  purchaser  and  on  the 
broker.     Kilpatrick  v.  Wiley,  197  ]\Io.  123,  95  S.  W.  213.' 

Sec.  719,    Burden  on  broker  to  prove  third  person  able  and 
willing  to  advance  cash  payment  to  purchaser. 

The  purchaser  was  unable  to  buy  the  land,  but  a  third  person 
agreed  to  furnish  the  money  necessary  to  make  the  cash  pay- 
ment; the  sale  was  not  made.  Held,  That  the  broker,  in  order 
to  recover  his  commissions,  must  prove,  not  only  that  the  pur- 
chaser was  ready  and  willing  to  buy,  but  that  the  third  person 
was  ready,  able  and  willing  to  advance  the  cash  payment.  Clark 
V.  Wihon,  41  Tex.  Civ.  App.  450,  91  S.  W.  627.  Also  that  pur- 
chaser has  cash  in  hand,  Avhere-  that  is  a  prescribed  condition. 
Waiters  v.  Dancetj  (S.  Dak.  Sup.  '09),  122  N.  W.  430. 

Sec.  719a.    What  necessary  to  prove  before  contract  became 
binding. 

Wliere,  in  an  action  by  a  broker  for  commissions  for  the  sale 
of  real  estate,  it  was  shown  that  defendant  contracted  with  a 
third  person  for  an  exchange  of  property,  "subject  to  inspec- 
tion of  land  furnished  by  each  party,"  within  fifteen  days, 
otherwise  the  trade  should  be  considered  closed,  and  that  de- 
fendant refused  to  carry  the  contract  into  effect;  the  broker, 
in  order  to  recover,  must  show  a  failure  of  defendant  to  inspect 
the  land  of  the  third  person,  for  the  right  to  recover  would  not 
be  made  out  without  proof  that  the  contract  between  the  de- 
fendant and  the  third  person  became  binding  by  defendant's 
failure  to  inspect.    Stotfs  v.  3Iiller,  128  Iowa,  633,  105  N.  W.  127. 

Sec.  720.     Burden  on  broker  who  claims  right  to  retain  com- 
missions out  of  purchase  money. 

Where  an  agent  claims  the  right  to  retain  commissions  out  of 
the  price  received  on  a  sale  of  land  of  his  principal,  the  burden 
of  proof  is  on  him  to  show  a  legal  right  to  retain  his  principal's 
money  as  commissions.    Knott  v.  Midkoff,  114  La.  234,  34  S.  153. 

Sec.  721.    Defendant  alleging  plaintiffs  were  to  get  wife  to 
join  in  contract  must  prove. 

Where,  in  an  action  to  recover  commissions  for  a  sale  of 
defendant's  homestead,  their  answer  alleged  that  plaintiffs  were 


PLE-U)INGS,    PRACTICE,    ETC.  465 

to  procure  the  wife  to  join  in  the  contract,  and  that  she  refused 
to  do  so,  the  burden  was  on  the  defendant  to  prove  such  fact.. 
Marlm\.  SippreU,  93  Minn.  271,  101  N.  W.  169. 

Sec.  722.  Burden  on  broker  that  he  had  required  written  au- 
thority to  make  the  sale. 
In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  plaintiff  had  the  burden  of  showing  that  at  the  time  he 
made  the  sale,  he  had  the  written  authority  required  by  statute. 
Turner  v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387. 

Sec.  723.     Burden  on  sub-agent  that  broker  had  authority  to 
employ  him. 

"Where  negotiations  for  a  lease  are  wdth  a  broker  of  the 
owner  of  the  premises,  the  burden  is  on  the  sub-agent  claiming 
commissions  to  show  that  the  broker  had  authority  to  employ 
him,  as  a  broker  authorized  to  lease  premises  presumptively 
is  not  authorized  to  employ  a  sub-agent.  Soutlihach  v.  Ireland, 
95  N.  Y.  S.  621,  100  App.  Div.  45.  Compare,  Madler  v.  Pogor- 
ski,  124  Wis.  477,  102  N.  W.  892. 

Sec.  724.  Burden  on  broker  to  show  payment  or  not  collected 
through  fault  of  owner. 
A  contract  of  agency  to  sell  land  provided  that  if  the  cash 
payment  of  any  sale  was  equal  to  $3.50  per  acre  the  broker 
should  receive  his  commissions  in  full,  but  if  less,  then  the 
broker  should  receive  only  one-half  of  his  commissions,  the  other 
half  to  be  paid  when  the  second  installment  w^as  collected  from 
the  purchaser.  Held,  in  an  action  to  recover  the  balance  of  com- 
missions on  land  sold,  that,  where  half  the  commissions  had 
been  received,  the  agent  must  show,  either  that  the  second  in- 
stallment had  been  paid  to  the  owner,  or  that  it  had  not  been 
collected  by  reason  of  the  owner's  fault.  Burnet  v.  Edling,  19 
Tex.  Civ.  App.  711,  48  S.  W.  775;  Larson  v.  Burroughs,  116 
N.  Y.  S.  358. 

Sec.  725.     Burden  on  broker  to  prove  agreement  to  sell  was 
made  and  the  customer  able  and  willing  to  perform. 
A  real  estate  broker  employed  to  procure  a  purchaser  of  land 
for  a  fixed  price,  or  any  other  price  below  that  consented  to  by 


466  AMERICAN    LAW   UE.iL   ESTATE   AGENCY. 

the  owner,  has  the  burden  of  proving  that  he  produced  a  person 
with  whom  the  owner  reached  an  agreement  of  sale  or  exchange, 
and  that  such  person  was  able  and  willing  to  carry  out  such 
agreement,  in  order  to  recover  the  commissions  provided  for. 
Hunt  V.  TuttU,  133  Iowa  647,  110  N.  W.  1026;  Blackledge  v. 
Davis,  129  Iowa,  591,  105  N.  W.  1000;  Waiters  v.  Dancey, 
(S.  D.  Sup.   '09),  122  N.  W.  430. 

Sec.  725a.  What  a  loan  broker  must  show  to  recover  where 
loan  is  not  consummated. 
A  loan  broker,  where  the  loan  is  not  consummated,  must  at 
least  show  the  procurement  of  a  person  able  and  willing  to 
accept  it  upon  the  precise  terms  stipulated  by  his  principal. 
Strauss  v.  Eastern  Breiving  Co.,  118  N.  Y.  S.  806. 

Sec.  726.  On  accepted  contract  burden  of  proof  on  owner  to 
show  irresponsibility  of  buyer. 
"Where  the  principal  accepts  the  purchaser  found  by  his 
broker,  without  questioning  his  ability  to  perform,  and  the 
sale  fails  of  consummation  by  the  purchaser's  own  fault  or 
failure  to  make  good  his  offer,  the  burden  is  on  the  principal 
in  order  to  defeat  the  broker's  right  to  compensation,  to  show 
the  purchaser's  want  of  ability.  Dodson  v.  MilUken,  27  App. 
(D.  C.)  500;  Phinizy  v.  Bush,  129  Ca.  479,  59  S.  E.  259;  (In 
many  States  owner  bound  by  acceptance.)  Compare  Sees. 
694,  842. 

Sec.  727.    Broker  must  prove  performance  within  a  reasonable 
time. 

A  broker  employed  to  procure  a  purchaser  of  real  estate 
under  a  contract  which  does  not  specify  the  time  for  the  per- 
formance of  the  contract  must,  in  an  action  for  his  commissions, 
prove  that  he  performed  it  within  a  reasonable  time.  Harris 
V.  Moore,  134  Iowa  704,  112  N.  W.  163;  Hurst  v.  Williams,  31 
Ky.  L.  R.  658,  102  S.  W.  1176.  On  acceptance  immaterial. 
Moore  v.  Boehm,  91  N.  Y.  S.  125,  45  Misc.  622. 

Sec.  728.    Burden  of  proof  on  defendant  when  he  alleges  plain- 
tiff was  agent  of  tenant. 
Where,  in  an  action  by  a  broker  for  commissions  for  procur- 
ing a  tenant  for  defendant,  the  defense  was  that  the  broker  was 


PLEADINGS,  PRACTICE,  ETC.  467 

the  agent  of  the  tenant  procured,  the  burden  of  proof  was 
on  defendant  to  show  the  existence  of  such  agency.  Ballerttine 
V.  Mercer,  130  Mo.  App.  605,  109  S.  W.  1037. 

Sec.  728a.  Vendee  suing  to  recover  money  paid  vendor's  a^ent 
on  unauthorized  contract  has  burden  of  proving  vendor's 
ratification. 

A  vendee  suing  the  land  owner  to  recover  money  paid  his 
agent  on  an  unauthorized  contract  of  sale  made  by  the  latter, 
has  the  burden  of  proving  ratification  by  the  land  owner.  Ed- 
wards V.  Davidson  (Tex.  Civ.  App.  '04),  79  S.  W.  48. 

Sec.  728b.  Burden  of  proof  as  to  double  pajrment  of  commis- 
sions. 

Where,  in  an  action  to  recover  an  alleged  double  payment 
of  a  real  estate  agent's  commissions,  defendants  claimed  that  the 
second  payment  was  for  other  services,  and  that  the  receipt 
executed  therefor  had  been  given  to  plaintiff's  agent,  who  had 
knowledge  of  the  previous  payment  of  the  commissions,  an 
admission  of  such  prior  payment,  and  the  execution  of  such 
receipt  did  not  shift  the  burden  of  proof  to  the  defendants  to 
show  that  the  second  payment  was  not  for  services  previously 
paid  for.    Phelps  v.  Miu'er  (Tex.  Civ.  App.  '04),  83  S.  W.  218. 

Sec.  728c.  Burden  on  broker  to  show  defect  in  owner's  title 
which  defeated  sale. 

Where  a  broker  procured  one  who  was  willing  to  purchase 
the  land  of  his  principal  but  for  a  defect  in  the  title,  in  an 
action  to  recover  his  commissions,  the  burden  is  on  the  broker 
to  show  that  such  defect  existed,  no  binding  contract  of  purchase 
having  been  made.  Brackenridge  v.  Claridge,  91  Tex.  527,  44 
S.  W.  819. 


CHAPTER  IX. 
EVIDENCE— ADMISSIBLE. 

Sec.   729.     Oral   agreement,   where   correspondence   does   not 
cover  compensation. 

Where  the  correspondence  by  which  plaintiffs  were  employed 
to  sell  land  does  not  cover  the  question  of  compensation,  a 
former  oral  agreement  as  to  compensation  to  be  charged  may 
be  shown,  but  where  the  contract  by  correspondence  refers  to 
a  sale  of  lots  at  specified  prices  and  terms,  evidence  of  a  former 
oral  agreement  that  the  sale  should  be  made  subject  tc  defend- 
ant's approval,  and  that  the  deed  should  contain  certain  condi- 
tions, is  inadmissible.    Sayrc  v.  Wilson,  86  Ala.  151,  5  S.  157. 

Sec.  729a.     Contract  of  employment  admissible  to  prove  value 
of  services  rendered  by  broker. 

"Where  a  broker  introduces  a  prospective  purchaser  to  the 
seller,  and  the  latter  undertakes  to  conduct  the  negotiations  and 
finally  sells  the  property  for  less  than  the  terms  named  in  the 
contract  of  employment,  the  original  contract  is  admissible,  in 
an  action  by  the  broker,  as  a  basis  for  the  ascertainment  of 
reasonable  compensation.  Smith  v.  Sharp  (Ala.  Sup.  '09),  50 
S.  381. 

Sec.  730.    Writing  reciting  payment  of  consideration  as  tend- 
ing to  prove  broker's  services. 

A  written  agreement  entered  into  by  plaintiffs'  customer  for 
the  purchase  of  property  and  reciting  the  payment  of  part  of 
the  stipulated  price  to  plaintiffs,  is  admissible  as  tending  to 
show  that  plaintiffs  rendered  services  in  effecting  a  sale  of  the 
property.  Rothschild  v.  Burritt,  47  Minn.  28,  49  N.  W.  393; 
Teho  V.  Mitchell,  5  Pennewill  (Del.),  356,  63  A.  327. 

468 


PI^A DINGS,    PRACTICE,   ETC.  469 

Sec.  731.    Deed  of  principal  to  show  ratification  of  broker's 
contract. 

A  deed  executed  by  the  principal  to  the  purchaser  after  the 
commencement  of  the  suit,  is  admissible  to  show  the  principal's 
ratification  of  the  broker's  contract.  Gelott  v.  Ridge,  117  Mo. 
55.3,  23  S.  W.  882. 

Sec.  732.    Written  contract  of  sale  to  show  sale  was  made. 

The  written  contract  of  sale  executed  by  plaintiffs  as  de- 
fendant's agents  is  admissible  to  show  that  the  sale  was  made, 
although  the  agents  had  no  written  authority  to  make  it,  and 
it  was  afterwards  repudiated  by  the  defendant.  Monroe  v. 
Snow,  131  m.  126,  23  N.  E.  401  :  Johnson  v.  Buchanan  (Tex. 
Civ.  App.  '09\  116  S.  W.  875;  Orof^RP  v.  Cooleif,  43  Minn.  188, 
45  N.  W.  15;  Cutter  v.  PearsoU,  146  Cal.  690,  81  P.  25;  Snyder 
V.  Fidler,  125  Towa,  378,  101  N.  W.  150. 

Sec.  733.    Newspaper  advertisement  to  show  efforts  of  brokers 
to  sell  the  property. 

A  newspaper  advertisement  published  by  plaintiffs  is  admis- 
sible as  showing  what  they  did  in  performance  of  their  duty 
under  the  contract  to  sell  the  property.  Decker  v.  Widdicomh, 
137  Mich.  .331,  100  N.  W.  .573. 

Sec.  733a.  Broker  may  testify  he  advertised  lands  in  news- 
paper. 
A  real  estate  broker  suing  for  commissions  may  testify  that 
he  advertised  the  land  in  a  certain  newspaper,  no  effort  beinsr 
made  to  prove  in  this  manner  the  terms  or  contents  of  the  ad- 
vertisement. Yarhorough  v.  Creager  (Tex.  Civ.  App.  '03),  77 
S.  W.  645. 

Sec.  734.    Memoranda  made  by  the  parties. 

A  memorandum  signed  by  the  parties  to  proposed  sale  is 
admissible  in  evidence.  Folinshee  v.  Sawyer,  28  N.  Y.  S.  698, 
8  Misc.  370. 

Sec.  734a.    Contract  and  release  admissible  in  evidence. 

Tn  an  action  for  broker's  commissions  for  procuring  a  tenant 
for   premises,   wherein   defendant  claimed   plaintiff  agreed   to 


470  AMERICAN   liAW   REAL  ESTATE   AGENCY. 

forego  the  payment  of  his  commissions  until  payment  of  the 
rent  by  the  tenant,  the  complaint,  in  an  action  by  defendant 
against  the  tenant  for  specific  performance  of  the  contract  pro- 
cured by  plaintiff,  and  the  release  subsequently  executed  to 
the  tenant  are  admissible,  not  only  as  an  admission  of  the  con- 
tract, but  to  show  that  there  was  an  agreement  by  plaintiff  to 
postpone  payment  of  commissions;  defendant  had  voluntarily 
put  it  out  of  his  power  to  collect  such  rent.  Benedict  v.  Pincus, 
119  N.  Y.  S.  266. 

Sec.  735.    Conversations,  when  pertinent  to  the  issues. 

In  an  action  for  commissions  on  a  sale  of  real  estate,  evidence 
of  negotiations  between  plaintiff  and  the  customer  afterward 
communicated  to  defendant  is  admissible.  Luhn  v.  Fortran 
(Tex.  Civ.  App.  '09),  115  S.  W.  667;  Huff  v.  Cole,  127  Mich. 
351,  86  N.  W.  835;  Kurinshy  v.  Lynch  (Mass.  '09),  87  N.  E. 
70;  Benedict  v.  T>aUn  (Til.  Sup.  '09),  90  N.  E.  712;  Leonard 
V.  Roberts,  20  Colo.  88,  36  P.  880;  White  v.  Collins,  90  Minn. 
165,  95  N.  W.  765 ;  Woolley  v.  Lowenstein,  31  N.  Y.  S.  570,  83 
Hun,  155;  Brumfield  v.  Potter,  etc.,  Mfg.  Co.,  23  N.  Y.  S.  1025, 
4  M.  194;  Richardson  v.  Bahcock,  119  Wis.  141,  96  N.  W.  554; 
McDonald  v.  Smith,  99  Minn.,  42,  108  N.  W.  291;  Fortran  v. 
Stevens,  113  S.  \Y.  312  (Tex.  Civ.  App.  '08). 

Sec.  736.    Conversations  after  the  sale  are  not  admissible. 

Conversations  between  a  broker  and  the  purchaser  after  the 
sale  are  inadmissible.  McDonald  v.  Ortman,  98  ]\Iich.  40,  56 
N.  W.  1055;  also,  betwen  plaintiff'  and  proposed  purchaser,  in 
the  absence  of  defendant.  Rutherford  v.  Selover,  87  Minn.  495, 
92  N.  W.  413.  Likewise,  between  buyer  and  seller  before  and 
after  the  execution  of  the  contract  of  sale,  it  affects  the  broker. 
Veazie  v.  Parker,  72  Me.  443. 

Sec.  737.    Letter  of  broker  to  purchaser's  agent  to  prove  efforts 
to  make  a  sale. 

In  an  action  by  a  broker  to  recover  from  the  seller  of  real 
estate,  commission  for  procuring  a  purchaser,  the  question  was 
whether  a  letter  written  by  the  broker  to  the  purchaser's  agent 
was  admissible  to  prove  his  efforts  to  make  a  sale ;  and  com- 


PLEADINGS,  PRACTICE,  ETC.  471 

petent  as  part  of  the  res  gestae  to  show  what  the  broker  did 
under  his  employment  towards  procuring  a  purchaser,  and  was 
not  rendered  incompetent  because  it  incidentally  corroborated 
the  testimony  of  the  broker  as  to  the  date  of  the  interview 
between  him  and  the  defendant.  Carroll  v.  Fettit,  22  N.  Y.  S. 
250,  67  Hun,  418;  Stieivd  v.  Lalhj,  89  Ark.  195,  115  S!  W.  1134. 

Sec.  737a.  Evidence  admissible  showing  communication  to 
another  agent  of  plaintiff's  employment  by  the  seller. 
In  an  action  for  commissions  claimed  to  have  been  earned 
by  purchasing  land  for  defendant,  where  defendant  claimed 
that  plaintiff  received  a  commission  from  the  seller  of  the  tract 
in  violation  of  his  relations  as  agent,  which  commission  plaintiff 
claimed  was  received  for  defendant's  benefit  and  by  his  au- 
thority, evidence  was  admissible  of  the  employment  and  the 
extent  of  the  authority  of  another  employed  by  defendant  to 
assist  the  plaintiff  in  securing  the  option,  who,  by  plaintiff's 
direction,  communicated  to  defendant  the  proposed  terms  for 
the  purchase  of  the  tract  in  question,  but  the  compensation  he 
was  to  receive  from  defendant  was  immaterial.  Mahon  v.  Ran- 
km  (Ore.  Sup.  '09.),  102  P.  608. 

Sec.  738.     Correspondence  to  establish  agency. 

On  the  issue  as  to  whether  a  loan  broker  was  the  agent  of 
defendant  in  negotiating  a  loan  for  him,  or  the  agent  of  the 
plaintiff  company  which  made  the  loan,  correspondence  between 
the  broker  and  the  plaintiff's  manager  relative  to  defendant's 
loan  and  a  requested  extension  thereof,  and  concerning  other 
loans  made  by  plaintiff  through  the  broker,  is  admissible  in 
evidence,  and  the  question  is  for  the  jury.  Jesson  v.  Texas 
Land  &  Loan  Co.,  3  Tex.  Civ.  App.  25,  21  S.  W.  624 ;  Wefel  v. 
Stillman  (151  Ala.  249),  44  S.  203;  Wallick  v.  Lynch  (Iowa,  '06), 
106  N.  W.  617 ',Veale  v.  Greene,  105  Mo.  App.  182,  79  S.  W.  731. 

Sec.  739.     Evidence  to  show  plaintiff's  employment  by  defend- 
ant's agent. 
In  an  action  for  services  rendered  by  plaintiff  in  purchasing 
property  for  defendant,  testimony  that  defendant's  agent  solic- 
ited witness  to  go  to  plaintiff  and  induced  plaintiff  to  negotiate 


472  AMERICAN   liAW   REAL   ESTATE    AGENCY. 

for  the  purchase  of  the  property,  and  that  witness  accordingly 
went  to  plaintiff  and  represented  to  him  that  defendant's  agent 
was  authorized  to  employ  him  on  defendant's  behalf,  was 
admissible  to  show  plaintiff's  employment  by  defendant's  agent. 
St.  L.  S.  W.  n.  Co.  of  Texas  v.  Irvine  (Tex.  Civ.  App.  '05),  89 
S.  W.  428 

Sec.  740,  Any  competent  evidence  to  prove  or  to  disprove 
plaintiff's  employinent. 
Where  defendant  denies  that  he  agreed  to  pay  plaintiff  a 
commission  for  selling  his  property  at  a  certain  price  as  claimed 
by  plaintiff,  evidence  of  one  to  whom  defendant  had  given  an 
option  prior  to  the  alleged  agreement  that  he  was  able  and 
willing  to  pay  said  price  without  any  deductions  therefrom,  was 
competent  to  disprove  the  contract.  Dexter  v.  Collins,  21  Colo. 
455,  42  P.  664;  Border  v.  Isherwood,  120  Iowa,  677,  94  N.  W. 
1128;  McDermoit  v.  Malwney,  119  Iowa,  470,  115  N.  W.  32,  130 
Iowa,  200;  Leivis  v.  Susmileh,  130  Iowa,  203,  106  N.  W.  624; 
Jetimngs  v.  Booney,  183  Mass.  577,  67  N.  E.  665;  Childs  v. 
Ptomey,  17  Mont.  502,  43  P.  714;  Jackson  v.  Biggins,  70  N. 
H.  637,  49  A.  574;  Miller  v.  Irish,  3  Hun  (N.  Y.),  352,  67  Barb. 
256,  5  Thomps.  &  C.  707,  affirmed  63  N.  Y.  652;  Hodgkins  v. 
Mead,  8  N.  Y.  S.  854;  Dayton  v.  Eyerson,  13  How.  Pr.  (N. 
Y.)  281;  Bertelson  v.  'Hoffman,  35  Wash.  459,  77  P.  801;  Going 
V.  Cook,  1  Wash,  224,  23  P.  412;  Indiana  Fruit  Co.  v.  Sandlin, 
125  Ga.  222,  54  S.  E.  65;  Harvey  v.  Lindsay,  117  Mich.  267, 
75  N.  W.  627. 

Sec.  740a.     Evidence  admissible  to  show  transaction  occurred 
within  the  period  alleged  by  plaintiff. 

In  an  action  for  commissions  for  a  sale  of  land,  it  was  not 
error  to  admit  evidence  as  to  the  authorization  that  it  dated 
prior  to  December  8,  1905,  where  the  amended  complaint  sets 
out  that  in  June,  1904,  plaintiff  was  employed  by  defendants 
to  procure  purchasers  for  the  land,  and  that  such  work  was 
continued  until  April,  1906,  when  the  lands  were  sold,  for  the 
evidence  objected  to  goes  to  prove  the  transaction  between  June, 
3904,  and  December  8,  1905.  Boss  v.  Carr  (N.  M.  Sup.  '09.), 
103  P.  307. 


PLEADINGS,  PRACTICE,  ETC.  473 

Sec.  740b.     Real  contract  admissible  to  show  difference  from 
that  sued  on. 
The  real  contract  is  admissible  in  evidence  to  show  difference 
from  that  sued  on.    Tracey  Land  Co.  v.  Land  etc.  Co.,  131  Iowa 
40,  107  N.  W.  1029. 

Sec.  741.     Evidence  to  prove  defendant's  agent  had  authority 
to  employ  a  broker. 

Where  plaintiff  claims  to  have  been  employed  as  broker  by 
the  husband  as  agent  of  defendant,  any  competent  evidence  is 
admissible  which  tends  to  show  that  the  husband  had  authority 
to  employ  a  broker  on  behalf  of  his  wife.  Eichherg  v.  Ware,  92 
Ga.  508,  17  S.  E.  770;  Hall  v.  Grace,  179  Mass.  400,  60  N. 
E.  932';  Darling  v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578. 

Sec.  742.  Evidence  as  to  the  value  of  property,  on  issue  as  to 
good  faith  of  broker  in  accepting  employment. 
In  an  action  against  their  principal  for  damages  for  the  loss 
of  commissions  caused  by  the  refusal  to  accept  the  deed  and 
carry  out  the  contract  where  the  defense  was  want  of  mental 
capacity  to  contract,  evidence  of  the  actual  value  of  the  prop- 
erty is  competent  only  when  offered  to  show  that  the  price 
offered  was  so  exorbitant  as  to  be  inconsistent  with  good  faith 
on  the  part  of  the  broker  in  undertaking- to  contract  for  the 
purchase  at  the  price  authorized.  Cavender  v.  Waddingham, 
5  Mo.  App.  457. 

Sec.  743.     Evidence  to  prove  or  to  disprove  plaintiff  the  pro- 
curing cause  of  the  transaction. 

In  an  action  by  a  broker  for  compensation,  the  defense  being 
a  general  denial,  any  competent  evidence  is  admissible  in  behalf 
of  plaintiff  or  defendant  which  tends  to  prove  or  to  disprove  that 
plaintiff  was  the  procuring  cause  of  the  transaction  into  which 
the  defendant  and  the  customer  entered ;  if  any  act  of  the  broker 
in  pursuance  of  his  authority  to  find  a  purchaser  is  the  initiatory 
step  that  leads  to  the  sale  consummated,  the  owner  must 
pay  tbe  commission.  TToadley  v.  Danhury  Sav.  Bk.,  71  Conn. 
,590.  42  A.  667.  44  L,  R.  A.  ^2\;  Doonan  v.  Ives,  73  Ga.  295; 
Smiley  v.  Bradley,  18  Colo.  App.  191,  70  P.  696 ;  Adams  v.  Mc- 


474  AMERICAN  LAW  REAL  ESTATE   AGENCY. 

Laughlin,  159  Ind.  23,  64  N.  E.  462 :  Eunn  v.  Asliton,  121  Iowa, 
265,  96  N.  W.  745;  Sawyer  v.  Boivman,  91  Iowa,  717,  59  N. 
W.  27 ;  Newton  v.  Eitchie,  75  Iowa,  91,  39  N.  W.  209 ;  Creager 
V.  Johnson,  114  Iowa,  249,  86  N.  W.  275;  Brooks  v.  Leathers, 
112  Mich,  463,  70  N.  W.  1099;  Kerr  v.  Cusenhury,  69  Mo.  App. 
221;  Willard  v.  ^Vright  (Mass.  Sup.  '09),  89  N.  E.  559;  Childs 
V.  Ptomey,  17  Mont.  502,  43  P.  714;  Waters  v.  Rafalsky,  119 
N.  Y.  S.  271;  Lockhart  v.  Hamlin,  190  N.  Y.  132,  82  N.  E.  1094; 
Doran  v.  Bussard,  45  N.  Y.  S.  387,  18  App.  Div.  36;  Goldsmith 
V.  Cook,  14  N.  Y.  S.  878,  Rev.  13  N.  Y.  S.  578 ;  Bowser  v.  Field 
(Tex.  Civ.  App.  '91),  17  S.  W.  45;  Larsen  v.  Thoma  (Iowa  Sup. 
'09),  121  N.  W.  1059. 

Sec.  743a.     Proper  to  show  purchaser's  state  of  mind  regard- 
ing the  purchase. 

In  determining  the  question  which  one  of  two  brokers  effected 
a  sale,  it  is  proper  to  show  by  the  purchaser  his  state  of  mind 
regarding  the  purchase  after  he  had  left  the  broker  claiming 
the  commission.    McGvire  v.  Carlson,  61  111.  App.  295. 

Sec.  744.  Evidence  to  prove  or  to  disprove  customer's  ability, 
readiness  and  willingness  to  buy. 
"Where  the  owner  of  land  refused  to  complete  a  sale  to  a  pur- 
chaser introduced  by  a  broker,  evidence  of  the  prospective  pur- 
chaser in  an  action  by  the  broker  for  commissions  that  at  the 
time  he  was  introduced  to  the  land  owner  he  was  ready  and 
willing  to  buy  the  land  on  the  terms  mentioned  in  the  contract, 
and  so  stated  to  the  owner,  was  admissible.  McDermott  v.  3Ia- 
honey,  119  Iowa  470,  affirmed  115  N.  W.  32,  139  Iowa  292; 
Walsh  v.  Gay,  63  N.  Y.  S.  543;  49  App.  Div.  50;  Kirchner  v. 
Beichardt,  27  Misc.  530,  58  N.  Y.  S.  314;  Joffe  v.  Nagel,  114 
N.  Y.  S.  905. 

Sec.  745.    If  the  contract  omits  compensation  evidence  of  the 

reasonable  value  of  broker's  services. 
.  In  an  action  for  services  rendered  by  real  estate  brokers  in 
procuring  a  purchaser  for  defendant's  land,  where  there  were 
iio  written  pleadings  in  the  trial  court  and  no  testimony  of 
any  definite  contract,  evidence  of  the  value  of  the  service  based 
on  the  price  for  which  the  land  sold  was  properly  admitted  and 


PLEADINGS,  PRACTICE,  ETC.  475 

a  judgment  entered  upon  that  basis  was  proper.  Brand  v. 
Merritt,  15  Colo.  286,  25  P.  175;  Gciger  v.  Riser  (Colo.  Sup. 
10),  107  P.  267;  Glover  v.  Henderson,  120  Mo.  367,  25  S. 
W.  175;  Bickart  v.  Hoffman,  19  N.  Y.  S.  472;  Carruthers  v. 
Towne,  86  Iowa  318,  53  N.  W.  240;  Knight  v.  Knight,  142  111. 
App.  62;  Weil  v.  Schwartz  (Tex.  Civ.  App.  '09),  120  S.  W. 
1039;  Fleming  v.  Wells,  (Colo.  Sup.  '09),  101  P.  66. 

Sec.  746.    Evidence  to  prove  or  to  disprove  existence  of  custom. 

Where  a  principal  claimed  that  its  broker  had  been  notified 
of  its  custom  to  give  only  quit-claim  deeds  to  purchasers  of 
its  real  estate,  evidence  to  show  that  after  its  refusal  to  give 
a  deed  with  warranty,  it  offered  to  give  such  a  deed  if  an 
increased  price  was  paid,  was  admissible  to  show  that  no  such 
custom  existed.  Beach  v.  Traveler's  Ins.  Co.,  73  Qonn.  118, 
46  A.  867. 

Sec.  747.    Evidence  of  option  holder  to  disprove  agency. 

Where  defendant  denied  that  he  agreed  to  pay  plaintiff  a 
commission  for  selling  his  property  at  a  certain  price,  as  claimed 
by  plaintiff,  evidence  of  one  to  whoin  defendant  had  given  an 
option  price  to  the  alleged  agreement,  that  he  was  able  and 
willing  to  pay  such  price,  without  any  deduction  therefrom, 
was  competent  to  disprove  the  agency.  Dexter  v.  Collins,  21 
Colo.  455,  42  P.  664 

Sec.  748.  Entry  in  book  of  price  agreed  on,  made  in  defend- 
ant's presence. 
In  an  action  by  real  estate  brokers  for  commissions  on  a  sale, 
where  the  question  in  dispute  is  whether  plaintiff's  had  authority 
to  sell  at  the  price  named,  an  entry  in  plaintiff's  books  of  the 
price  agreed  on,  made  by  them  in  defendant's  presence  and  at 
the  time  of  their  conversation  with  him,  is  admissible  in  evi- 
dence, though  written  in  cipher.  Monroe  v.  Snow,  131  111. 
126,  23  N.  AV.  401. 

Sec.  749.     Oral  evidence  to  show  that  written  agreement  was 
obtained  by  fraud. 

The  rule  of  law  forbidding  the  admission  of  evidence  of  an 
oral  agreement  made  prior  to  or  contemporaneously  with  the 


476  AMERICAN'  LAW   REAL   ESTATE   AGENCY. 

written  agreement  in  question,  does  not  preclude  the  admission 
of  evidence  tending  to  show  that  the  written  agreement  was 
fraudulently  obtained,  or  that  it  resulted  from  accident  or 
mutual  mistake.    Culp  v.  Poivdl,  68  IMo.  App.  238 

Sec.  749a.  Parol  evidence  admissible  to  rebut  that  of  plain- 
tiff. 
In  an  action  for  a  real  estate  broker's  commissions,  parol  evi- 
dence that  the  written  agreement  of  prospective  purchasers 
with  the  owner  was  not  finally  binding,  and  that  after  it  was 
revoked',  plaintiff  sought  to  procure  new  purchasers,  is  admis- 
sible on  behalf  of  such  owner  to  rebut  the  effect  of  such  agree- 
ment in  evidence.  Folinsbee  v.  Saivyer,  157  N.  Y.  196,  51  N. 
E.  994. 

Sec.  750.'  Evidence  of  length  of  time  land  for  sale  by  broker, 
to  show  knowledge  by  purchaser. 
In  an  action  for  commissions  for  procuring  a  purchaser  for 
land  where  the  land  was  purchased  by  one  claiming  to  buy 
on  his  own  initiative,  evidence  that  the  land  had  been  listed 
two  months  before  the  transaction  in  issue,  and  the  purchaser 
informed  of  the  land  being  for  sale  from  that  source,  was  ad- 
missible as  tending  to  explain  how  the  purchaser  ascertained 
that  the  land  was  for  sale  and  came  to  negotiate  with  defend- 
ant for  its  purchase.    Eyan  v.  Page,  134  Iowa  60,  111  N.  W.  405. 

Sec.  751.     Contract  between  plaintiff  and  third  person  to  show 
he  desired  to  purchase. 

In  an  action  to  recover  commissions  for  a  sale  of  defendant's 
land,  a  contract  entered  into  between  plaintiff  and  a  third  per- 
son setting  forth  the  terms  of  the  purchase,  was  admissible  to 
show  that  such  third  person  was  Avilling  to  purchase  the  prop- 
erty, though  plaintiff  had  no  authority  to  enter  into  a  contract 
which  M'as  binding  on  defendant.  Kepner  v.  Ford  (N.  Dak.  '07), 
111  N.  W.  619;  Clark  v.  Wilson,  41  Tex.  Civ.  App.  450,  91 
S.  W.  627. 

Sec.  752.     Evidence  concerning  purchaser's  securing  funds  to 
buy,  on  issue  as  to  ability. 
In   an  action   for  a  broker's  commissions,   evidence   concern- 
ing arrangements   made  by   the   purchaser's  broker  for   funds 


PI.E.iDINCiS,    PRACTICE,   ETC.  477 

with  which  to  complete  the  purchase,  and  the  financial  ability 
of  the  concern  from  which  the  funds  were  to  be  secured,  was 
admissible.  Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103 
S.  W.  664. 

Sec.  752a.     Evidence  admissible  on  issue  whether  broker  was 
a  joint  purchaser. 

In  a  broker's  action  for  commissions,  evidence  that  to  en- 
able the  purchasers  to  make  the  cash  payment  required  plain- 
tiff agreed  to  loan  them  the  amount  of  the  commissions  claimed 
by  him,  was  admissible  on  the  issue  whether  plaintiff  was  a 
joint  purchaser.  Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W. 
433. 

Sec.  753.     As  to  what  occurred  between  plaintiff  and  another 
as  to  drawing  deed  to  purchaser. 

In  an  action  for  a  broker's  commissions,  evidence  as  to  what 
occurred  between  plaintiff  and  another  with  reference  to  draw- 
ing the  deed  to  the  purchaser  plaintiff  claimed  to  have  secured 
was  admissible.  Leuschner  v.  Patrick  (Tex.  Civ.  App.),  103  S. 
W.  664. 

Sec.  754.     Evidence  of  value  of  lands  as  bearing  on  value  of 
plaintiff's  services. 

Where  plaintiff  sued  on  a  quantum  meruit  for  services  in 
obtaining  options  to  purchase  coal  lands  for  defendant,  evi- 
dence as  to  the  value  of  the  lands  was  admissible  as  bearing 
on  the  value  of  plaintiff's  services.  Denk  Bros.,  C.  &  C.  Co. 
V.  Stroetter,  229  111.  134,  82  N.  E.  250;  Huff  v.  Hardwick, 
19  Colo.  App.  416,  75  P.  593. 

Sec.  755.     Declarations  of  defendant's  agents  as  part  of  the 
res  gestae. 

In  an  action  for  a  broker's  commissions,  declarations  of  de- 
fendant's agents  as  to  the  broker's  commissions,  made  at  the 
time  they  were  negotiating  and  closing  the  deal  with  the  pur- 
chaser found  by  the  broker,  are  admissible  as  part  of  the  res 
gestae.  Fritz  v.  Chicago  Grain  &  Ele.  Co.,  136  Iowa,  699,  114 
N.  W.  193.  Tuifrce  v.  Bin  ford,  130  Iowa,  532,  107  N.  W.  425; 
Joffe  V.  Nagel,  114  X.  Y.  S.  905;  IMechem  on  Ag.  Sec.  715. 


478  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

Sec.  756.    Where  terms  of  sale  were  not  given,  evidence  of 
purchaser's  refusal  to  accept. 

Where,  in  an  action  by  a  real  estate  broker  for  commissions 
for  procuring  a  purchaser  of  real  estate,  it  appears  that  the 
terms  of  sale  were  not  given  by  defendant  at  the  time  the 
broker  was  employed,  evidence  of  occurrences  at  the  meeting 
of  the  parties  resulting  in  the  purchaser's  refusing  to  accept 
the  contract  proposed  was  admissible,  whether  defendant  had 
an  option  on  the  property  or  had  merely  authority  to  sell  it. 
Behrman  v.  Marcus,  107  N.  Y.  S.  12.  Also  where  terms  were 
not  expressed  in  written  agreement,  parol  evidence  to  estab- 
lish same.     Casey  v.  Richards  (Cal.  App.   '09),  101  P.  36. 

Sec.  757.    Evidence  as  to  custom  of  agents  to  look  after  vacant 
property. 

The  testimony  of  real  estate  agents  in  St.  Louis  that  it  is 
a  custom  or  usage  of  real  estate  agents  having  in  charge  prop- 
erty for  the  collection  of  rents  to  look  after  the  property  while 
vacant,  is  admissible  to  explain  the  intended  scope  of  the 
agency.     Cameron  v.  McNair,  76  Mo.  App.  366. 

Sec.  758.     Deed  and  receipt  as  tending  to  show  defendant 
could  have  obtained  the  property. 

In  an  action  for  a  broker's  commissions  for  negotiating  a 
purchase  which  defendant  refused  to  consummate,  a  deed  and 
receipt  purporting  to  have  been  signed  and  acknowledged  by 
the  owner,  and  proof  of  a  tender,  were  admissible,  with  other 
proof,  as  tending  to  show  that  defendant  could  have  obtained 
the  property  at  his  offer  had  he  desired  to  do  so,  where  no 
objection  was  raised  as  to  their  form  or  genuineness.  Hanna 
V.  Espalla,  148  Ala.  313,  42  S.  443. 

Sec.  758a.     Evidence  admissible  to  show  defendant  refused  to 
execute  deeds  to  buyers  procured  by  broker. 

Evidence  that  the  agents  of  the  owner  of  lands,  with  the 
approval  of  the  owner,  sold  a  part  of  them  which  had  been 
intrusted  to  plaintiffs  for  sale,  to  persons  who  were  found  by 
plaintiffs,  and  induced  by  them  to  come  on  the  lands  with  the 
purpose  of  purchasing,  is  admissible  in  an  action  against  the 
owner  for  a  breach  of  his  contract  in  refusing  to  execute  deeds 


PLEADINGS,  PRACTICE,  ETC.  479 

to  buyers  found  by  plaintiffs.    Burnett  v,  Edling,  19  Tex.  Civ. 
App.  711,  48  S.  W.  775. 

Sec.  759.     Evidence  of  person  who  purchased  claim  that  de- 
fendant had  no  part  in  the  transaction. 

In  an  action  for  commissions  by  a  person  engaged  to  secure 
title  to  certain  mining  properties,  where  defendant's  answer 
averred  that  he  had  taken  no  part  in  the  transaction  involving 
their  subsequent  purchase  by  another  person,  and  plaintiff  had 
testified  that  he  would  not  be  entitled  to  commissions  had  the 
person  obtaining  the  purchase  dealt  with  persons  other  than 
defendant,  evidence  of  the  person  who"  purchased  the  claims 
that  defendant  had  no  part  in  the  transaction,  was  admissible. 
Baileij  v.  Carlton,  43  Colo.  4,  95  P.  542. 

Sec.  760.    Evidence  tending  to  show  defendants  held  them- 
selves out  as  partners. 

In  an  action  by  a  real  estate  broker  for  commissions,  wherein 
one  defendant  filed  a  separate  plea  denying  that  he  was  justly 
liable,  with  his  co-defendant,  evidence  was  admissible  by  the 
broker  as  to  various  trips  made  by  him  with  his  co-defendant 
around  the  country  for  the  purpose  of  selling  lands,  and  the  • 
action  of  the  defendant  denying  joint  liability  therewith,  as 
was  also  evidence  by  another  of  a  purchase  by  him  of  land 
from  defendants  jointly,  as  tending  to  show  the  relation  of 
defendants  and  that  they  held  themselves  out  as  partners.  Mc- 
Cann  v.  Meyer,  232  111.  507,  83  N.  E.  1042. 

Sec.  761.  Prices  at  which  similar  lands  were  selling  as  evi- 
dence of  good  faith. 
In  an  action  by  a  real  estate  agent  for  commissions,  evidence 
of  the  prices  at  which  neighboring  lands  of  the  same  kind 
were  selling  at  the  time  the  sale  was  made  is  admissible  to 
show  that  a  good  price  was  realized,  thereby  tending  to  prove 
faithfulness  and  efficient  service.  Anderson  v.  Lewis  64  W. 
Va.  297,  61  S.  E.  160. 

Sec.  761a.     Competent  to  show  intentions  of  parties  by  subse- 
quent dealings. 

In  an  action  by  an  agent  against  the  principal  for  a  com- 
mission on  a  real  estate  deal,  it  is  competent  to  show  the  real 


480  AMERICAN    LAW    REAL   ESTATE   AGENCY, 

intentions  of  the  parties  as  to  carrying  out  the  contract  by 
their  subsequent  dealings  in  pursuance  thereof.  Gibson  v,  nup,t 
(Iowa  Sup.   '03),  94  N.  W.  277. 

Sec.  761b.     Evidence  admissible  on  question  whether  broker 
.had  abandoned  the  contract. 

"Where,  in  an  action  by  plaintiff  for  commissions  on  a  sale 
of  defendant's  property,  defendant  alleged  an  abandonment 
of  the  contract,  statements  of  plaintiff  that  he  continued  his 
efforts  to  dispose  of  the  property  were  competent  on  the  ques- 
tion of  whether  he  had  abandoned  the  contract.  Clements  v. 
Stapleton,  136  Iowa,  137,  113  N.  W.  546. 

Sec.  761c.     Broker's  contract  admissible  in  evidence. 

Where  the  assignee  of  certain  real  estate  brokers  sued  in 
assumpsit  to  recover  compensation  for  a  broker's  services  ren- 
dered under  a  written  contract  with  defendant,  which  defend- 
ant had  cancelled  before  the  termination  of  the  contract  term, 
the  contract  was  admissible  in  evidence.  Breen  v.  Boy  (Cal. 
App.   '08),  97  P.  170. 


CHAPTER  X. 
EVIDENCE— INADMISSIBLE. 

Sec.  762.    On  bill  for  specific  performance,  that  land  in  one 
year  doubled  in  value. 

On  a  bill  for  specific  performance  of  a  contract  to  convey, 
in  which  the  defense  is,  that  the  broker  who  made  the  sale 
did  so  without  authority  of  defendant,  evidence  that  the  land 
in  one  year  doubled  in  value  is  inadmissible.  Wilkinson  v. 
Churchill,  114  Mass.  184 ;  Goin  v.  Hess,  102  Iowa,  140  71  N. 
W.  218. 

Sec.  763.    Agent's  private  record  book  to  prove  authority  to 
sell  land. 

The  private  record  book  of  a  real  estate  agent  is  not  com- 
petent to  prove,  in  an  action  for  commissions,  that  authority 
had  been  given  to  him  by  the  owner  of  the  land  to  sell  the 
same.  Boyd  v.  Jennings,  46  111.  App.  290.  Compare  Monroe 
V.  Snow,  131  111.  126,  23  N.  E.  401. 

Sec.  764.  Evidence  to  prove  custom  among  brokers  in  ex- 
changes to  charge  each  party. 
An  offer  to  prove  a  general  custom  among  brokers  acting 
for  both  parties  to  an  exchange  of  lands  to  charge  commissions 
to  each,  held  properly  refused,  for  the  reason  that  it  appeared 
that  the  broker  was  the  agent  of  one  of  the  parties,  and  could 
not,  therefore,  legally  demand  compensation  from  the  other. 
Dartt  V.  Somnesym,  86  Minn.  55,  90  N.  W.  115. 

Sec.  765.    Evidence  of  an  offer  of  compromise. 

Evidence  that  the  owner  refused  to  pay  the  broker,  but  of- 
fered a.s  a  compromise,  to  pay  a  fixed  amount  and  to  give  an- 
other specified  amount  to  a  church,  is  inadmissible,  under  the 

481 


482  AMERICAN    LAW   REAL   ESTATE   AGENCY, 

rule  that  propositions  made  with  a  view  to  a  compromise  are 
not  proper  evidence.  Emery  v.  Atlanta-  R.  E.  Ex.,  88  Ga.  321, 
14  S.  E.  556 ;  Ross  v.  Decker,  68  N.  Y.  S.  790,  34  Misc.  168. 

Sec.  766.     Evidence  by  unexpert  witnesses  as  to  the  value  of  a 
broker's  services. 

It  was  not  error  to  refuse  to  admit  the  opinions  of  witnesses 
as  to  the  value  of  plaintiff's  services  in  negotiating  a  purchase, 
the  witnesses  not  being  experts  and  having  no  better  means 
of  forming  a  judgment  than  the  jurors.  Miller  v.  Early,  22 
Ky.  L.  R.  825,  58  S.  W.  789. 

Sec.  767.    In  an  action  for  executed   )-lc  evidence  of  respon- 
sibility of  purchaser. 

In  an  action  by  a  broker  against  a  vendor  for  his  commis- 
sions, the  contract  between  the  vendor  and  purchaser  being 
executed,  and  there  being  no  allegation  or  proof  that  the  bro- 
ker induced  the  vendor  to  execute  the  contract,  or  any  repre- 
sentation of  bad  faith,  testimony  as  to  the  financial  ability  of 
the  purchaser  was  inadmissible.  Fleet  v.  Barker,  104  N.  Y.  S. 
940,  120  App.  Div.  455.  Compare  Dodson  v.  Milliken,  27  App. 
(D.  C.)  500. 

Sec.  768.    Evidence  that  defendant  wanted  witness  to  advise 
him  as  to  purchaser's  proposal. 

In  an  action  for  a  broker's  commissions,  evidence  that  de- 
fendant applied  to  witness  to  know  what  to  do  concerning  the 
proposed  purchas  jr  's  proposition  to  pay  for  the  land  in  monthly 
installments,  and  the  witness's  advice  given  in  response,  was  in- 
admissible. Leuschner  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S. 
W.  664. 

Sec.  769.    Oral  evidence  to  extend  expired  written  authority 
to  agent. 

Written  authority  was  entered  into  giving  a  broker  the  ex- 
elusive  right  to  sell  real  estate  at  a  fixed  price  before  a  certain 
date.  Held,  that  an  offer  to  show  that  at  the  time  of  the  exe- 
cution of  the  contract  defendant  told  plaintiff  that  if  the  said 
sale  was  effected  after  the  expiration  of  the  written  contract 


PLE-VDINGS,   PRACTICE,   ETC.  483 

defendant  would  pay  the  broker  his  commission,  was  inadmis- 
sible.   Laxleij  V.  Studehacker,  75  N.  J.  L.  599,  68  A.  98. 

Sec.  769a.    Written  contract  insuflScient  and  parol  evidence 
inadmissible. 

Under  Ballinger's  Annotated  Code  and  Statutes,  Sec.  4576, 
amended  by  laws  of  1905,  p.  110,  c.  58,  requiring  contracts  for 
the  employment  of  brokers  to  sell  real  estate  for  a  commission 
to  be  in  writing,  a  written  contract  employing  a  broker  to  pro- 
cure a  purchaser  of  real  estate  for  a  fixed  price  net,  containing 
no  stipulation  for  the  payment  of  a  commission,  and  showing 
the  erasure  in  the  printed  form  used  of  the  words  providing 
for  the  payment  of  a  commission,  is  insufficient,  and  parol 
evidence  fixing  the  liability  for  the  commissions  is  inadmissible. 
Foote  V.  Bobbins,  50  Wash.  277,  97  P.  103. 

Sec.  770.    In  an  action  by  architect  for  fees,  cost  of  building 
given  building  department. 

In  an  action  by  an  architect  for  fees  for  making  plans  for 
a  building  at  a  specified  per  cent,  of  its  cost,  a  statement  as 
to  the  cost  in  the  plans  filed  with  the  building  department, 
was  inadmissible.  Israels  v.  McDonald  l07  N.  Y.  S.  826  123 
App.  Div.  63. 

Sec.  771.    In  an  action  for  commissions  evidence  of  defend- 
ant's dealings  with  other  brokers. 

In  an  action  by  a  broker  for  compensation  on  the  issue  as 
to  whether  the  contract  with  the  principal  called  for  a  com- 
mission of  a  certain  percentage  of  the  proceeds  of  the  sale,  or 
of  the  proceeds  over  a  specified  price,  evidence  as  to  defendant's 
dealings  with  other  real  estate  agents,  and  the  terms  under 
which  he  had  listed  the  land  with  them,  was  inadmissible.  Lloyd 
V.  Kerley  (Tex.  Civ.  App.  '07),  106  S.  W.  696;  Ross  v.  Carr 
(N.  M.  Sup.  '09),  103  P.  307;  Leander  v.  Graves  (Colo.  Sup. 
'09),  100  P.  403. 

Sec.  771a.    Evidence  as  to  property  not  involved  in  suit  inad- 
missible. 
Under  a  declaration  claiming  commissions  only  on  property 
purchased  by  defendant,  evidence  of  negotiations  by  plaintiffs 


484  AMERICAN    liAW   REAL   ESTATE    AGENCY. 

in  regard  to  other  property  is  inadmissible.    Martien  v.  Mayor, 
etc.,  Baltimore,  109  Md.  260,  71  A.  966. 

Sec.  772.    Receipt  in  connection  with  another  exchange  of 
the  same  property. 

In  an  action  by  real  estate  brokers  for  a  commission  for 
negotiating  an  exchange  of  defendant's  property,  which  de- 
fendant refused  to  carry  out,  a  receipt  given  by  one  of  the 
plaintiffs  to  defendant  for  a  commission  paid  him  by  defend- 
ant for  effecting  an  exchange  of  the  same  property  with  an- 
other purchaser  is  inadmissible,  because  foreign  to  the  issues. 
Goodman  v.  Linetzky,  107  N.  Y.  S.  50. 

Sec.  773.    Printed  statutes  of  New  Jersey,  under  plea  of  non- 
assumpsit. 

Where  a  resident  of  New  Jersey  sues  to  recover  on  a  parol 
contract  for  commissions  for  a  sale  of  real  estate  in  New  Jer- 
sey, the  printed  statutes  of  New  Jersey  requiring  such  con- 
tracts to  be  in  writing  was  inadmissible  under  the  plea  of  non- 
assumpsit,  but  only  by  way  of  special  matter,  after  due  notice. 
Callowwij  V.  Prettyrmn,  218  Pa.  293,  67  A.  418. 

Sec.  774.    In  action  against  husband  for  commissions,  what 
was  said  between 'wife  and  purchaser. 

In  an  action  against  a  husband  for  a  broker's  commissions 
for  selling  the  wife's  land,  testimony  that  another  told  de- 
fendant that  plaintiff  tried  to  sell  him  the  property  at  a  profit 
above  the  figure  the  wife  asked,  and  as  to  what  was  said  be- 
.tween  the  wife  and  one  of  the  purchasers,  was  inadmissible. 
Green  v.  Brady,  152  Ala.  507,  44  S.  408. 

Sec.  775.  Declarations  and  statements  by  plaintiffs  as  to  sale 
of  land,  as  self-serving. 
In  an  action  for  a  broker's  commissions,  declarations  and 
statements  by  the  plaintiff  as  to  the  sale  of  the  land,  and  what 
he  would  be  entitled  to,  were  self-serving  and  inadmissible. 
Leutscher  v.  Patrick  (Tex.  Civ.  App.  '07),  103  S.  W.  664; 
Boss  V.  Muskowitz,  100  Tex.   434,   100   S.  W.  768.     Also  by 


PLEADINGS,  PRACTICE,  ETC.  485 

the  owner  as  to  the  sale  of  the  property.    Goldstein  v.  D'Arcy, 
201  Mass.  312,  87  N.  E.  584. 

Sec.  776.     On  issue  whether  defendant's  agent  had  authority 
— Defendant's  opinion. 

Where  the  issue  was  whether  the  defendant's  agent  had  au- 
thority to  make  a  certain  contract,  defendant's  opinion  to  that 
effect  was  inadmissible,  as  being  a  conclusion  of  law.  •  Roche 
V.  Pennington,  90  Wis.  107,  62  N.  W.  946. 

Sec.  776a.  Statement  by  owner  in  regard  to  title  the  mere 
expression  of  an  opinion. 
That  a  land  broker  was  told  by  the  owner  that  defects  had 
been  found  in  the  title,  but  that  he  believed  it  was  good,  as 
they  had  owned  the  land  thirty  or  forty  years,  was  sufficient 
to  put  the  broker  on  inquiry  and  charge  him  with  notice  of 
the  defects ;  the  statement  by  the  owner  that  the  title  was, 
good  being  merely  an  expression  of  opinion.  Montgomery  v. 
Amsler  (Tex.  Civ.  App.   '09),  122  S.  W.  307. 

Sec.  776b.    Admission  of  contract  in  evidence  held  prejudicial 
to  plaintiff. 

Where,  in  an  action  for  broker's  commissions  for  procuring 
a  purchaser  of  real  estate,  the  issue  was  whether  plaintiff  had 
been  employed  to  procure  a  purchaser,  the  admission  in  evi- 
dence of  a  contract  of  sale  drawn  in  the  absence  of  plaintiff, 
stating  that  the  seller  and  purchaser  agreed  that  no  broker 
had  brought  about  the  sale,  and  that  no  commission  was  to  be 
paid  to  the  broker,  was  prejudicial  to  plaintiff.  Koch  v.  Bjor- 
kegran,  119  N.  Y.  S.  193. 

Sec.  777.  In  interpleader,  declaration  of  principal  that  one 
was  entitled  to  the  fee. 
In  an  action  in  interpleader  where  the  issue  between  the  par- 
ties is  as  to  the  right  to  commissions  for  the  sale  of  real  es- 
tate, the  declarations  of  the  owner  of  the  property  sold,  made 
some  time  after  the  sale  had  been  effected  and  in  the  absence 
of  the  defendant,  to  the  effect  that  he  thought  plaintiff  was 


486  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

entitled    to    the    commission,    are    inadmissible.      Shipman    v. 
Freeh,  3  N.  Y.  S.  932,  15  Daly,  151. 

Sec.  778.  Statement  by  principal  that  absent  broker  had  no 
authority  to  sell. 
In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
where  another  broker  claiming  the  same  commissions  is  sub- 
stituted as  defendant  for  the  principal,  he  having  paid  the 
commissions  into  court,  the  principal's  statement  to  one  of  the 
brokers,  in  the  other's  absence,  that  the  absent  broker  had  no 
authority  to  sell  the  land  with  a  builder's  loan,  is  properly  ex- 
eluded.    Id. 

Sec.  779.     Under  general  denial,  that  defendant  sold  premises 
before  sale  by  plaintiff. 

"Where  the  answer  is  a  genera,  denial,  the  issue  presented 
by  the  pleading  is  the  truth  of  the  allegations  of  the  petition. 
Under  such  an  issue  affirmative  proof  in  favor  of  the  defend- 
ant can  not  be  received,  and  an  instruction  submitting  such 
proof  to  the  jury  is  erroneous,  and  hence,  evidence  offered  by 
defendant  that  he  sold  the  premises  to  other  parties  before  the 
sale  by  plaintiff  is  inadmissible.  Griffith  v.  Wooltmrth,  44  N. 
W.  1137,  28  Neb.  715. 

Sec.  780.    Unless  pleaded,  evidence  that  defendant  defeated 
payment. 

In  an  action  by  a  broker  to  recover  commissions  for  selling 
land,  evidence  that  the  act  of  defendant  prevented  the  hap- 
pening of  the  contingency  on  which  payment  was  to  be  made 
was  inadmissible,  the  excuse  not  being  pleaded  by  the  plain- 
tiff.    Turner  v.  Lane,  93  N.  Y.  S.  1083,  47  Misc.  387. 

Sec.  781.    Evidence  that  defendant's  agent  refused  hotel  to 
prospective  purchasers. 

In  an  action  by  a  broker  for  commissions  alleged  to  have 
been  lost  by  the  refusal  of  his  client  to  convey  the  land  sold, 
evidence  that  the  client's  agent  had  refused  the  use  of  the 
client's  shed  and  hotel  at  the  place  where  the  land  is  situated 


PliEADINGS,    PRACTICE,    ETC.  487 

to  prospective  purchasers  found  by  plaintiff  was  inadmissible. 
Burnet  v.  Edling,  19  Tex.  Civ.  App.  711,  48  S.  W.  775. 

Sec.  782.    Evidence  as  to  value  of  services  where  contract  fixed 
commission. 

Where,  in  an  action  for  a  broker's  commissions  for  negotiat- 
ing a  purchase,  it  appeared  that  if  he  had  been  employed,  he 
was  entitled  to  a  fixed  commission  under  the  contract,  evi- 
dence was  inadmissible  to  show  what  was  a  reasonable  commis- 
sion for  the  services.  Hanna  v.  Espalla,  148  Ala.  313,  42  S. 
443 ;  McDermott  v.  Abney,  106  Iowa,  749,  77  N.  W.  505 ;  Beatty 
V.  Russell,  41  Neb.  321,  59  N.  W.  919;  Evans  v.  Gay,  38  Tex. 
Civ.  App.  442,  74  S.  W.  575;  Fortran  v.  Stowers,  113  S.  W. 
631  (Tex.  Civ.  App.  '08) ;  Goldstein  v.  D'Arcy,  87  N.  E.  584, 
201  Mass.  312. 

Sec.  783.    Evidence  of  option  after  sale  had 'been  completed. 

In  an  action  by  a  broker  for  commissions,  evidence  of  inde- 
pendent negotiations  regarding  an  option  after  a  sale  had  been 
completed  by  plaintiff  is  inadmissible,  though  it  might  have 
been  competent  if  relating  to  negotiations  before  the  sale  was 
made.  Reed  v.  Light,  170  Ind.  550,  85  N.  E.  9 ;  Geo.  B.  Loving 
Co.  V.  Hesperian  Cattle  Co.,  176  Mo.  330,  75  S.  W.  1095. 

Sec.  783a.    Evidence  held  inadmissible. 

Where  a  contract  between  an  owner  of  land  and  his  agent 
for  sale  contained  specific  authority  to  the  agent  to  sell  a  cer- 
tain acreage,  evidence  was  inadmissible,  in  an  action  by  the 
agent  for  commissions,  to  show  that  the  tract  contained  a  great- 
er acreage  than  stated,  to  defeat  the  claim,  where  there  was 
no  proof  that  the  defendant  asserted  any  claim  to  a  greater 
acreage  prior  to  the  time  plaintiff  made  the  sale.  Denton  v. 
Howell  (Tex.  Civ.  App.  '05),  87  S.  W.  221. 

Sec.  783b.    When  evidence  of  improvements  inadmissible. 

Evidence  of  improvements  made  by  a  land  owner,  without 
the  knowledge  of  his  broker,  can  not  be  shown  in  an  action 
by  the  broker  for  commissions  for  procuring  a  purchaser  for 
the  land  at  the  price  fixed  before  the  making  of  the  improve- 


488  AMERICAN   LAW  REAL  ESTATE  AGENCY. 

ments,  as  tending  to  show  that  the  price  so  fixed  must  have 
been  changed.    Hawley  v.  Maddocks,  25  Wash.  297,  65  P.  544. 

Sec.  783c.     Testimony  of  greater  acreage  inadmissible  to  de- 
feat broker's  right  to  commissions. 

"Where  a  contract  specifically  authorizes  the  sale  of  a  tract 
of  land  containing  a  certain  number  of  acres,  and  it  does  not 
appear  that  prior  to  the  sale  the  owner  claimed,  or  that  the 
agent  knew,  that  there  was  a  greater  number  of  acres  in  the 
tract,  evidence  that  the  tract  did  contain  a  greater  number  of 
acres  is  inadmissible  to  defeat  an  action  for  commissions.  How- 
ell V.  Denton  (Tex.  Civ.  App.  '08),  113  S.  W.  314. 


CHAPTER  XL 

EVIDENOE— IMMATERIAL  AND  IRRELEVANT. 

Sec.  784.    Fact  that  defendant  had  other  agents  not  instru- 
mental in  effecting  sale. 

In  an  action  for  commissions  for  procuring  a  purchaser  for 
land,  the  fact  that  defendant  had  other  agents  is  immaterial, 
it  not  being  contended  that  they  had  been  instrumental  in 
bringing  about  the  sale.  Rounds  v.  Alee,  116  Iowa,  345,  89 
N.  W.  1098;  Goin  v.  Hess,  102  Iowa,  140,  71  N.  W.  218. 

Sec.  785.    In  an  action  for  commissions,  right  of  vendor  to 
convey  or  value  of  property. 

Where  a  broker  employed  to  purchase  specific  property  at 
a  fixed  price  had  brought  suit  aerainst  his  principal  for  com- 
missions, and  the  latter  refused  to  accept  the  deed,  the  ven- 
dor's right  to  convey,  or  the  actual  value  of  the  property,  were 
held  not  to  be  essential  matters  of  inquiry,  where  the  broker 
had  acted  in  good  faith.     Wheeler  v.  Knaggs,  8  Ohio,  '169. 

Sec.  786.    In  action  for  commissions,  that  broker  exceeded  au- 
thority by  making  a  contract  of  sale. 

Where  defendant  employed  real  estate  brokers  to  find  a  pur- 
chaser for  lands,  the  fact  that  they  exceeded  their  authority 
by  making  a  contract  of  sale  is  not  material  in  an  action  to 
recover  their  commissions.  Fishe  v.  Soide,  87  Cal.  313,  25  P. 
430. 

Sec.  787.    In  action  against  agent  for  fraud,  whether  pre- 
tended borrower  shared  the  money. 
A  recovery  in  an  action  by  the  principal  against  the  broker 
for  fraudulent  representations  that  the  worthless  property  on 

48d 


490  AMERICAN    LAW  REAL   ESTATE   AGENCY. 

"which  the  loan  was  made  was  good  security,  is  not  affected  by 
the  question  whether  he  shared  the  money  with  or  delivered 
any  part  of  it  to  the  pretended  borrower.  Rubens  v.  Mead, 
121  Cal.  17,  53  P.  432. 

Sec.  788.    Whether  the  contract  was  signed  before  or  after 
contract  for  exchange  was  signed. 

In  an  action  by  a  broker  to  recover  commissions  on  an  ex- 
change of  property  effected  by  him,  whether  the  written  agree- 
ment by  the  plaintiff  to  wait  for  his  commissions  until  title 
closed  was  signed  before  or  after  the  signing  of  the  contract 
of  exchange  was  immaterial,  where  all  the  terms  of  the  writ- 
ten contract  of  exchange  were  fully  agreed  on  on  the  preced- 
ing day,  the  subsequent  agreement  to  wait  for  the  accrued  com- 
missions being  unsupported  by  a  consideration.  Hough  v. 
Baldwin,  99  N.  Y.  S.  545,  50  Misc.  546.     See  also  Sec.  19. 

Sec.  789.    Where  broker  finds  purchaser,  the  reasonableness 
of  the  time. 

"Where  the  broker  finds  a  purchaser  at  the  seller's  terms, 
while  still  employed,  the  reasonableness  of  the  time  which  he 
has  taken  to  do  so  is  immaterial.  Moore  v.  Boehm,  91  N.  Y.  S. 
125,  45  Misc.  622. 

Sec.  790.     In  an  action  for  selling  a  title  bond,  attempt  by 
seller  to  show  broker  part  owner  of  premises. 

A  bond  was  given  by  A.  to  convey  a  lot  of  land  at  a  price 
named  per  square  foot,  the  bond  was  assigned  to  B.,  who  em- 
ployed C.  to  find  a  purchaser  for  the  land,  agreeing  to  pay 
him  all  he  could  get  over  the  price  named  in  the  bond;  C,  sold 
the  land  at  a  higher  price  to  D.,  and  A.,  at  the  request  of  B., 
conveyed  the  land;  in  a  suit  brought  by  C.  against  B.  to  re- 
cover the  excess  over  the  price  named  in  the  bond,  B.  offered 
to  show  that  C,  at  the  time  of  his  employment  as  agent  was 
interested  in  the  land  as  ,vner  or  part  owner,  and  did  not  dis- 
close this  fact  to  him,  and  contended  that  the  sale  of  the  land 
was  a  fraud  upon  him.  Held,  that  the  question  of  such  owner- 
ship was  immaterial.     Durgin  v.  Somers,  117  Mass.  55. 


PLEADINGS  PRACTICE,  ETC.  491 

Sec.  791.  On  agreement  to  share  commissions  evidence  that 
plaintiff  tried  to  sell. 
Where  plaintiff  authorized  defendant  to  seU  property  for 
which  plaintiff  was  agent,  the  profits  to  be  divided  equally  be- 
tween them,  but  did  not  transfer  the  exclusive  agency  to  de- 
fendant, an  attempt  on  plaintiff's  part  to  effect  a  sale  to  de- 
fendant's customer  was  not  inconsistent  with  his  contract  with 
defendant,  and  evidence  thereof  was  immaterial  in  an  action 
by  the  plaintiff  to  recover  his  share  of  the  profits  on  a  sale 
made  by  defendant.  Madler  v.  Pozorski,  124  Wis.  477,  102  N. 
W.  892. 

Sec.  791a.  Evidence  as  to  how  long  agent  had  known  prop- 
erty prior  to  sale  was  immaterial. 
Where,  in  an  action  by  a  broker  for  commissions  for  pro- 
curing a  purchaser,  it  was  not  claimed  that  an  agent  of  the 
purchaser  learned  that  the  property  was  for  sale  until  after 
the, broker  had  visited  the  purchaser,  evidence  as  to  how  long 
the  agent  had  known  the  property  prior  to  the  time  of  sale 
was  immaterial.  Benedict  v.  Dakin  (111.  Sup.  '09),  90  N.  E. 
712. 

Sec.  792.  That  broker  failed  to  impart  the  name  of  the  pur- 
chaser. 
Where,  in  an  action  on  a  contract  for  a  division  of  a  bro- 
ker's profits,  there  was  evidence  that  defendant  sold  the  prop- 
erty to  a  purchaser  procured  by  plaintiff,  in  accordance  with 
the  contract  between  them  for  a  division  of  commissions,  and 
that,  at  the  time  of  the  sale  defendant  knew  that  plaintiff  had 
procured  a  purchaser,  it  was  immaterial  that  plaintiff  failed 
to  impart  to  defendant,  prior  to  the  sale,  the  name  of  the  per- 
son with  whom  plaintiff  had  been  negotiating,  and  to  whom 
the  property  was  subsequently  sold.  MeCleary  v.  Willis,  35 
Wash.  676,  77  P.  1073.    See  also  Sees.  487,  525. 

Sec.  793.    Where  contract  must  be  in  writing,  to  allege  defend- 
ant received  benefits. 

Where  the  petition,  in  an  action  by  a  real  estate  agent  to 
recover  commissions,  fails  to  show  a  written  contract,  as  re- 


492  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

quired  by  statute,  the  fact  that  the  plaintiff  alleges  that  de- 
fendant received  the  benefit  of  his  services,  and  therefore  can 
not  be  relieved  of  his  liability  to  pay  for  the  same  is  imma- 
terial.    Coveij  V.  Henry,  71  Neb.  118,  98  N.  W.  434. 

Sec.  794.  In  an  action  for  commissions  for  purchasing,  amount 
paid  broker  by  vendor. 
In  an  action  by  a  broker  for  commissions  in  purchasing  lands 
for  defendants,  defendants  having  introduced  the  vendor  as 
a  witness,  and  he  having  testified  that  he  paid  commissions  to 
such  broker  for  effecting  the  sale,  it  was  not  error  to  exclude 
evidence  of  the  amount  paid  by  him,  it  being  immaterial.  Lindt 
V.  ScJilitz  Brewing  Co.,  113  Iowa,  200,  84  N.  W.  1059. 

Sec.  795.  Where  averred  that  trade  was  made  by  D.,  whether 
he  received  compensation. 
Where  plaintiffs  claim  they  effected  an  exchange  of  defend- 
ant's property,  and  defendants  assert  that  the  trade  was 
brought  about  by  D.,  the  question  whether  D.  had  received 
compensation  for  his  services  was  properly  excluded  as  imma- 
terial. Creager  v.  Johnson,  114  Iowa,  249,  86  N.  W.  275; 
'Sewell  V.  Collison,  108  N.  Y.  S.  25,  123  App.  Div.  586 

Sec.  796.  In  an  action  for  the  value  of  personalty  for  effecting 
an  exchange  of  land,  value  of  the  latter. 
In  an  action  for  the  value  of  personalty,  which  plaintiff  was 
to  receive  for  effecting  an  exchange  of  land  of  defendant  for 
a  store  property,  and  which  plaintiff  had  not  received  because 
defendant  refused  to  complete  the  trade,  evidence  as  to  the 
value  of  the  land  was  properly  excluded  as  immaterial.  Distad 
V.  Shanklhi,  15  S.  D.  507,  90  N.  W.  151. 

Sec.  797.  Where  owner  ratified  sale  by  attorney,  whether  he 
knew  all  the  terms. 
Where  one  authorizes  an  attorney  in  fact,  by  power  duly 
signed  and  acknowledged,  to  make  a  certain  contract  for  the 
purchase  of  land  with  certain  parties  and  of  a  certain  date, 
and  subsequently  ratifies  the  action  of  his  attorney,  it  is  im- 
material whether  he  knew  all  the  terms  and  conditions  of  the 


PliEADINGS,    PRACTICE,   ETC.  493 

contract  at  the  time  it  M-as  made,  and  he  will  be  bound  by  the 
contract  made  by  such  attorney.  Rank  v.  Garvey,  66  Neb.  767, 
92  N.  W.  1025,  99  N.  W.  666. 

Sec.  798.    In  an  action  against  a  broker  to  account  for  part 
of  the  price,  the  value  of  the  property. 

Where,  in  an  action  against  a  broker  for  failure  to  account 
for  a  part  of  the  price  received  by  him,  the  issue  was,  whether 
the  broker  sold  the  land  to  the  purchaser  through  a  third  per- 
son, as  his  agent,  or  whether  he  sold  it  to  a  third  person  who 
resold  it  to  the  purchaser,  evidence  of  the  value  of  the  prop- 
erty at  the  time  of  the  sale  was  immaterial.  Buchanan  v. 
Randall  (S.  D.  Sup.  '06),  109  N.  W.  513. 

Sec.  799.  Where  an  owner  sold  to  a  customer,  broker  could 
recover  although  he  failed  to  notify  the  owner. 
Where  an  owner  of  standing  timber,  after  employing  plain- 
tiff to  sell  the  same,  sold  it  himself  to  a  purchaser  procured 
by  plaintiff,  it  was  immaterial  to  plaintiff's  right  to  recover 
for  the  services,  that  the  owner  was  not  guilty  of  fraud  in  re- 
lation to  such  sale,  or  that  he  should  have  had  previous  knowl- 
edge that  the  purchaser  had  been  induced  to  buy  through  plain- 
tiff's efforts.  McDonald  v.  Cabiness,  100  Texas,  615,  98  S.  W. 
943,  affirmed  102  S.  W.  721.  Compare  Nance  v.  Smyth,  118 
Tenn.  349,  99  S.  W.  698;  Quist  v.  Goodfellow,  99  Minn.  509, 
110  N.  W.  65;  McLaughlin  v.  Campbell  (N.  J.  Err.  &  App. 
'09),  74  A.  530. 

Sec.  799a.  In  order  to  be  entitled  to  recover  commissions  it 
was  immaterial  whether  the  broker  was  the  agent. 
Where  the  owners  expressly  agreed  that  the  broker  should 
have  a  commission  in  case  of  a  sale  to  his  customer,  it  is  im- 
material, as  regards  his  right  to  commissions,  that  he  was  not 
their  agent.  Lanier  v.  Armstrong  (Wa.sh.  Sup.  '09),  102  P. 
775. 

Sec.  799b.     Brokers  negotiating  an  exchange  not  bound  to  in- 
form one  of  the  parties  of  his  employment  by  the  other. 

Brokers  negotiating  an  exchange  of  properties  being  middle- 
men held  not  bound  to  inform  one  of  the  parties  of  their  em- 


494  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

ployment  by  the  other.    Marks  v.  O'Donnell,  121  N.  Y.  S.  214. 
See  See.  578. 

Sec.  800.    Where  the  evidence  is  silent  as  to  the  broker  making 
previous  sales,  whether  he  had  a  license. 

Where  the  evidence  is  silent  as  to  whether  a  broker  was  en- 
gaged in  the  real  estate  business,  or  had  made  previous  sales, 
it  is  immaterial  whether  or  not  he  had  a  license  at  the  time 
of  the  sale  in  question.  Packer  v.  Sheppard,  127  111.  App.  598. 
See  also  Sec.  576. 

Sec.  801.     In  an  action  by  a  broker  for  fee  for  purchasing, 
right  of  vendor  to  convey  and  value  of  the  land. 

Where  a  broker  employed  to  purchase  specific  property  at  a 
fixed  price  brought  suiV  against  his  principal  for  commissions, 
on  the  latter  refusing  to  accept  a  deed  therefor  the  vendor's 
right  to  convey,  or  the  actual  value  of  the  property,  were  held 
not  to  be  essential  matters  of  inquiry,  where  the  broker  had 
acted  in  good  faith.     Wheeler  v.  Knaggs,  8  Ohio,  169. 

Sec.  801a.  Whether  or  not  the  party  to  be  charged  with  the 
commission  is  the  owner  of  the  land  is  immaterial. 
The  right  of  a  broker  to  recover  a  commission  for  making  a 
sale  of  land  is  purely  a  matter  of  contract ;  and  where  a  valid 
contract  in  writing  has  been  made,  it  is  immaterial  whether 
or  not  the  party  to  be  charged  is  the  owner  of  the  land.  San- 
chez V.  Yorha,  8  Cal.  App.  490,  97  P.  205. 

Sec.  802.    Evidence  that  after  revocation  broker  produced  a 
responsible  purchaser. 

Where  an  agent's  authority  to  sell  his  principal's  land  has 
been  revoked,  whether  the  agent  afterwards  actually  secured 
a  purchaser  ready  and  able  to  buy  the  land  on  the  principal's 
terms  was  immaterial,  in  an  action  for  damages  for  the  revoca- 
tion, unless  on  the  issue  of  damages.  Mulligan  v.  Owens,  123 
Iowa,  285,  98  N.  W.  792. 

Sec.  803.    Whether  the  agent  was  to  secure  a  purchaser  or 
make  a  sale,  where  owner  would  not  consummate. 

Whether  real  estate  agents  were  to  secure  a  purchaser  or 
make  a  sale  themselves  is  immaterial,  where  the  owner,  by  his 


pijEadings.  practice,  etc.  495 

conduct,  rendered  it  impossible  for  them  to  consummate  the 
sale.     Church  v.  Dunham,  14  Idaho,  776,  96  P.  203,  205. 

Sec.  803a.    Letter  between  third  parties  immaterial. 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
for  services  in  effecting  an  exchange  of  lands,  which  was  finally 
completed  by  other  brokers,  a  letter  from  one  of  these  other 
brokers  to  another  of  them,  offered  by  the  defendant  merely 
as  a  part  of  the  history  of  the  transactions  which  culminated 
in  the  sale,  may  be  excluded  as  immaterial  as  well  as  being 
res  inter  alios.    Hall  v.  Grace,  179  Mass.  400,  60  N.  E.  932. 

Sec.  804,     Statement  by  defendant  that  if  he  had  had  his  own 
way  he  would  have  sold  when  he  had  a  chance. 

In  an  action  for  commissions  for  procuring  a  purchaser  of 
land,  a  conversation  between  defendant  and  the  broker,  sev- 
eral months  after  the  contract  was  entered  into  between  them, 
in  which  defendant  stated  that  if  he  had  had  his  own  way 
he  would  have  sold  his  land  when  he  had  a  chance  to,  was 
irrelevant  and  immaterial.  Ewing  v.  Lunn  (S.  D.  Sup.  '08), 
115  N.  W.  527. 

Sec.  805.     In  a  suit  to  recover  deposit  money,  evidence  of  sub- 
sequent contract  irrelevant. 

An  agent  sold  a  tract  of  land  subject  to  the  ratification  of 
his  principal,  with  an  agreement  that,  if  not  ratified,  he  would 
refund  to  the  purchaser  the  money  paid  by  him ;  the  principal 
refused  to  ratify.  In  a  suit  brought  by  the  purchaser  for  the 
money  so  paid  by  him^  Held,  that  evidence  of  a  subsequent 
contract  between  the  parties  was  irrelevant,  unless  it  was  pro- 
posed to  show  that  in  making  such  subsequent  contract  the 
matter  of  the  money  to  be  refunded  under  the  first  contract 
was  in  some  way  adjusted.     Evans  v.  George,  80  111.  51. 

Sec.  8G5a.    Judgment  stricken  out  as  irrelevant. 

A  judgment  in  favor  of  the  purchaser  against  the  vendor 
rescinding  the  contract  for  fraud,  is  not  res  judicata  as  to  the 
vendor's  broker,  so  as  to  entitle  him  to  plead  it  in  a  suit  for 
his   commission,   and   an  allegation   setting   up   the   judgment 


496  AMERICAN    I^AW   REAL   ESTATE    AGENCY. 

should   be   stricken    out    as   irrelevant.     Polak   v.   Rosenzwedff 
Realty  Co.,  116  N.  Y.  S.  38. 

Sec.  806.    In  action  to  recover  from  an  agent  part  of  price, 
influence  of  defendant  over  vendor. 

In  an  action  by  vendees  against  the  agents  who  made  the 
sale  to  recover  that  part  of  the  price  retained  by  them,  with- 
out plaintiff's  knowledge,  the  issue  being  whether  defendants 
were  the  agents  of  plaintiflFs  or  of  the  vendor,  proof  of  the 
value  of  the  p'^operty  sold  is  competent  to  explain  the  motive 
of  the  parties  to  the  contract,  and  evidence  that  the  action  was 
not  begun  until  after  the  defendants  had  dissolved  partner- 
ship and  become  their  business  rival  is  also  competent;  but 
evidence  as  to  the  motives  of  the  vendor  and  defendants'  influ- 
ence over  him,  is  irrelevant.  Duryea  v.  Voshurgh,  1  N.  Y.  S. 
833. 

Sec.  807.  Evidence  that  defendant  had  employed  another 
broker  who  tried  to  sell. 
Defendant's  evidence,  in  an  action  by  a  real  estate  broker 
for  commissions,  that  defendant  had  employed  another  broker 
who  attempted  to  dispose  of  the  land  to  a  purchaser,  and  who 
had  obtained  his  information  from  plaintiff,  is  rightly  excluded 
as  irrelevant.    Adams  v.  McLaughlin,  159  Ind.  23  64  N.  E.  462. 

Sec.  808.     In  a  suit  for  share  of  fees,  answer  alleging  broker 
worked  in  opposition. 

Plaintiff  alleged  that  he  was  authorized  by  the  owners  to 
sell  land,  and  that  he  agreed  to  divide  the  commissions  with 
defendant,  if  the  latter  would  find  a  purchaser;  that  defend- 
ant recovered  of  the  owners  the  commissions  on  a  sale  of  the 
land,  but  refused  to  pay  plaintiff  his  share;  defendant  al- 
leged that  during  the  negotiations  for  the  sale  of  the  land, 
plaintiff  worked  in  opposition  to  defendant,  and  endeavored 
to  make  a  sale  to  other  parties,  and  that  plaintiff  was  thereby 
estopped  from  claiming  that  he  was  jointly  interested  with  de- 
fendant in  selling  the  land.  Held,  that  the  plea  was  irrelevant 
and  properly  stricken,  there  being  nothing  in  the  case  to  indi- 


PLEADINGS,  PRACTICE,  ETC.  497 

eate  that  plaintiff  M'as  not  entitled  to  find  a  purchaser  himself. 
Wefel  V.  Stillman,  151  Ala.  249,  44  S.  203. 

Sec.  809.     In  an  action  for  fee  for  clearing  title,  evidence  of 
commissions  for  selling  property. 

In  an  action  by  a  real  estate  dealer  to  recover  on  an  ex- 
press contract  whereby  defendant  agreed  to  pay  him  a  certain 
percentage  of  the  proceeds  of  sales,  in  consideration  of  services 
to  be  rendered  in  clearing  the  title  to  and  putting  property 
in  marketable  condition  to  effect  a  sale,  evidence  as  to  the 
customary  commissions  for  making  sales  of  property  is  irrele- 
vant.   Jefferson  v.  Burham,  85  Fed.  949,  29  C.  C.  A.  481. 

Sec.  809a.     Conversation  not  in  presence  of  defendant  irrel- 
evant. 

Plaintiff  alleged  a  verbal  contract  bj^  which  he  was  to  ob- 
tain for  defendant  the  title  of  co-owners  of  a  mining  claim 
for  not  more  than  a  certain  sum,  his  commission  to  be  the 
difference  between  that  sum  and  the  price  asked.  Defendant 
alleged  that  unless  a  certain  sale  of  property  M'hich  he  was  ne- 
gotiating was  effected,  plaintiff  was  to  have  nothing  for  his 
services,  and  that  the  sale  was  not  effected.  Held,  that  evi- 
dence of  what  a  witness,  who  was  in  no  way  connected  with 
defendant  and  was  not  present  at  the  conversation  during 
which  the  contract  was  made,  stated  to  plaintiff  about  his  un- 
derstanding with  defendant  before  plaintiff  went  to  see  de- 
fendant, was  irrelevant.     Huntoon  v.  Lloyd,  8  Mont.  283. 

Sec.  809b.  Advice  of  third  person  to  purchaser  held  to  be  im- 
material on  issue  of  procuring  cause  of  sale. 
On  the  issue  whether  a  broker  employed  to  procp-e  a  pur- 
chaser was  the  procuring  cause  of  the  sale,  evidence  that  the 
purchaser  sought  the  counsel  of  a  third  person,  and  resolved 
not  to  purcha.se  unless  the  third  person  approved  thereof,  was 
immaterial.    Oliver  v.  Katz,  131  Wis.  409,  111  N.  W.  509. 


CHAPTER  XII. 
EVIDENCE  IN  GENERAL. 

Sec.  810.     Dissuasion — Evidence  that  failed  to  prove. 

On  the  issue  whether  the  owner  during  the  continuance  of 
an  option  given  by  him  to  a  broker  on  certain  real  estate  dis- 
suaded a  probable  customer  of  the  option  holder  from  pur- 
chasing from  him,  evidence  that  the  owner  and  the  customer 
had  several  interviews,  and  after  the  termination  of  the  op- 
tion entered  into  a  contract  to  accept  the  land,  does  not  prove 
dissuasion  on  the  part  of  the  owner.  Smith  v.  Lawrence,  98 
Me.  92,  56  A.  455. 

Sec.  811.    Whether  or  not  agent  was  a  regular  broker  does  not 
affect  the  value  of  his  services. 

Whether  or  not  an  agent  employed  to  sell  a  piece  of  land 
is  a  regular  broker,  does  not  affect  the  competency  of  evi- 
dence as  to  the  price  which  would  be  paid  a  broker  for  such 
services,  and  offered  for  the  purpose  of  showing  what  the 
agent's  services  were  worth,  Hallis  v.  Weston,  156  Mass.  357, 
31  N.  E.  483. 

Sec.  812.     In  an  action  for  procuring  lessee,  defendant  might 
show  that  lease  was  never  made. 

Plaintiffs,  real  estate  agents,  were  to  receive  certain  com- 
missions for  services  in  securing  a  lessee  for  defendant  upon 
agreed  terms,  and  they  procured  an  informal  agreement  for 
a  lease  to  be  signed  by  defendant  and  the  applicant  for  the 
lease.  Held,  that  defendant  might  show  by  parol  that  the  eon- 
tract  was  merely  provisional,  and  did  not  express  all  the  terms 
of  the  lease  to  be  entered  into  by  the  parties,  as  was  also  un- 
derstood by  plaintiffs,  and  that  the  lease  was  never  consum- 
mated, as  no  final  agreement  was  ever  made  between  defend- 
498 


PLEADINGS,  PRACTICE,  ETC.  499 

ant  and  the  lessee.     Buxton  v.  Bml,  49  Minn.  230,  51  N.  W. 
918.     See  also  Sec.  427. 

Sec.  813.    Real  estate  man  long  a  resident  of  the  town  com- 
petent to  testify  as  to  the  value  of  property. 

A  real  estate  man  who  has  long  resided  in  i  certain  town 
and  has  property  listed  on  his  books  in  a  certain  addition,  is 
competent  to  testify  as  to  the  value  of  property  in  that  addi- 
tion.    Ryan  v.  K.  C,  etc.,  R.  Co.,  Ill  Mo.  456,  20  S.  W.  234. 

Sec.  814.     Evidence  properly  excluded  that  broker,  three  years 
after  the  sale,  became  partner  of  purchaser. 

In  an  action  brought  by  B.,  an  agent,  to  recover  compensa- 
tion :£rom  R.  for  services  in  selling  real  estate  of  the  latter, 
the  defendant  pleaded  the  general  issue,  and  that  at  the  time 
of  the  sale  B.  was  interested  as  a  partner  of  the  purchaser 
procured;  B.  admitted  that  he  had  acquired  an  interest  in 
the  property  after  the  sale,  but  denied  that  he  had  an  interest 
in  it  at  the  time  of  the  sale ;  and  on  the  trial  below  R.  offered 
evidence  with  respect  to  the  price  received  by  B.  for  his  interest 
in  the  property  at  the  sale  thereof  made  by  the  latter  three 
years  after  the  sale  for  which  compensation  was  claimed  in 
the  suit;  the  evidence  was  offered  for  the  purpose  of  showing 
that  B.  was,  at  the  time  of  the  last  mentioned  sale,  a  partner 
in  the  purchase  made  thereat.  Held,  that  the  exclusion  of 
the  testimony  was  not  error.  Ruckman  v.  Bergholz,  38  N.  J. 
L.  531. 

Sec.  815.  Evidence  that  buyer  did  not  have  cash  but  able  to 
obtain  by  next  day,  able  to  buy. 
Where  the  written  contract  by  which  defendant  employed 
plaintiff  as  broker  to  sell  lands  fixed  the  selling  price  per  acre, 
and  provided  for  the  payment  of  a  certain  sum  in  casli  by  any 
purchaser  obtained,  evidence  that  the  purchaser  obtained  by 
plaintiff  under  the  offer  to  buy  at  the  price  named  in  the  con- 
tract did  not  have  in  his  possession  at  the  time  of  the  offer 
sufficient  funds  to  make  the  cash  payment  required,  but  could 
have  obtained  them  on  the  morning  of  the  next  day,  was  suffi- 
cient to  show  that  he  was  able  to  buy.    McDermott  v.  Mahoney, 


500  AMERICVN    LAW    REAL    ESTATE    AGENCY.' 

139  Iowa,  292,  106  N.  W.  925,  affirmed  115  N.  W.  32.    See  also 
See.  464. 

Sec.  816.    Witnesses  for  defendant  may  be  questioned  as  to  the 
interest  purchasers  had  in  the  land. 

In  an  action  on  account  for  commissions  transferred  to 
plaintiflf,  a  witness  for  defendant  may  be  questioned  as  to  the 
interest  the  purchasers  had  in  the  land,  and  as  to  what  in- 
duced defendant  to  make  the  sale,  such  questions  being  perti- 
nent to  matters  introduced  by  plaintiff.  Ivy  Coal  &  Coke  Co. 
V.  Long,  139  Ala.  535,  36  S.  722. 

Sec.  817.     In  cross-examination  it  was  proper  to  ask  assignor 
about  transaction. 

In  an  action  on  an  account  for  commissions  transferred  to 
plaintiff,  it  was  proper  ■  on  cross-examination  to  .  question  the 
assigmor,  who  rendered  the  services,  relative  to  the  negotia- 
tions between  the  purchasers  of  land,  the  plaintiff,  and  him- 
self as  to  the  transaction  as  consummated.     Id. 

Sec.-  817a.     On  cross-examination  defendant  not  required  to 
answer  as  to  whether  note  had  been  paid.  , 

In  an  action  for  commissions  for  a  sale  of  land  under  a  con- 
tract alleged  to  have  been  made  with  defendant's  agent,  where 
there  was  evidence  tending  to  show  that  the  contract  was  en- 
tered into  between  the  agent  and  defendant  for  an  exchange 
of  land  by  each,  defendant  agreeing  to  pay  the  agent  a 
certain  commission,  the  defendant  testified  that  he  settled  with 
the  agent  and  gave  him  a  note  for  the  amount  before  he  had 
any  knowledge  that  plaintiff  was  in  any  manner  connected 
w^ith  the  transaction,  plaintiff  could  not  on  cross-examination, 
require  the  defendant  to  answer  as  to  whether  the  note  had 
been  paid.     Qnale  v.  Hazel.  19  S.  D.  483.  104  N.  W.  215. 

Sec.  817b.     On  cross-examination  defendant  could  show  he  had 
become  surety  on  plaintiff's  note  to  a  bank. 

In  an  action  for  a  real  estate  broker's  commissions  defend- 
ant could  show,  on  plaintiff's  cross-examination  that  defend- 
ant had  become  a  surety  on  plaintiff's  note  to  a  bank.  Yates 
V.  Bratton  (Tex.  Civ.  App.    '08),  111  S.  W.  416. 


PLEADINGS,  PRACTICE,  ETC.  501 

Sec.  818.  Evidence  of  the  sale  of  property,  to  show  defend- 
ant's good  faith  in  refusing  loan. 
In  an  action  by  a  loan  broker  for  commissions  against  a 
client  who  had  refused  to  complete  a  loan  after  a  lender  had 
been  secured,  evidence  that  the  client  had  sold  the  property 
to  supply  him  with  the  needed  funds,  is  admissible  as  bearing 
on  the  credibility  of  his  testimony  that  he  had  refused  the 
loan  because  an  existing  mortgage  could  not  be  paid  off  be- 
fore maturity.  Payne  v.  Williams,  178  N.  Y.  589,  70  N.  E. 
1104. 

Sec.  818a.    Acts  of  purchaser  admissible  on  question  of  good 
faith. 

While  the  acts  of  a  purchaser  procured  by  a  broker  em- 
ployed to  obtain  a  purchaser  subsequent  to  the  time  fixed  for 
the  performance  of  the  contract  can  not  affect  the  rights  of 
the  broker  to  his  commissions,  such  acts  may  be  looked  to  to 
determine  whether  what  the  purchaser  did  to  establish  the  bro- 
ker's rights  was  done  in  good  faith,  and  whether  such  prior 
acts  had  the  legal  effect  claimed  for  them.  Little  v.  Herzinger, 
34  Utah,  337,  97  P.  639. 

Sec.  819.  Defendant  may  show  influence  other  agents  exerted 
on  sale. 
In  an  action  for  commissions,  under  a  contract  of  agency 
for  effecting  a  sale  of  real  estate,  the  defendant,  on  the  issue 
of  who  effected  the  sale,  is  entitled  to  show  the  influence  other 
agents  exerted  on  the  sale  before  and  after  the  contract  with 
plaintiff.    Smilexj  v.  Bradley,  18  Colo.  App.  191,  70  P.  696. 

Sec.  820.     Evidence  of  dealings  to  establish  relation  of  prin- 
cipal and  agent. 

In  an  action  for  a  real  estate  broker's  commissions  for  ne- 
gotiating a  purchase  which  defendant  refused  to  consummate, 
evidence  that  before  the  agreement  for  purchase  was  reached 
plaintiff  had  submitted  an  offer  to  the  owner  as  the  purported 
agent  of  defendant,  was  admissible  to  show  the  relationship 
of  the  parties  and  plaintiff's  offer  to  purchase  the  property 
for  defendant.    Eanna  v.  Espalla,  148  Ala.  313,  42  S.  443. 


502  AMERICA.N   LAW   REAL   ESTATE   AGENCY. 

Sec.  821.    Where  defendant  demanded  return  of  contract,  can 
show  it  referred  to  another  transaction. 

Where,  in  an  action  for  a  broker's  commissions  for  nego- 
tiating a  purchase  which  defendant  refused  to  consummate, 
there  was  testimony  for  plaintiff  that  defendant  had  demanded 
the  return  of  a  writing  executed  September  10,  alleged  to  show 
a  contract  of  employment,  at  the  same  time  recognizing  his 
obligation  to  pay  plaintiff  a  commission,  defendant  should  have 
been  permitted  to  show  that  the  paper  he  demanded  referred 
to  another  transaction,  and  that  at  the  same  time  plaintiff 
presented  a  statement  for  other  commissions,  not  including  the 
one  sued  on,  and  did  not,  prior  to  October  20,  make  demand 
for  the  sum  claimed.     Id. 

Sec.  822.  Plaintiff  to  purchase  must  show  seller  able  to  con- 
vey a  good  title. 
Under  a  contract  whereby  defendant  agreed  to  pay  plain- 
tiff $100  for  obtaining  a  sale  to  him  of  certain  real  property, 
plaintiff,  in  an  action  for  the  commission,  must  show  that  the 
person  produced  as  such  owner  was  willing  to  sell  at  the  stated 
price,  and  able  to  convey  a  merchantable  title.  Anderson  v. 
Johnson  (N.  D.  Sup.  '07),  112  N.  W.  139.     Compare  Sec.  290. 

Sec.  823.  Evidence  of  defendant  tending  to  show  that  option 
was  the  only  agreement. 
Where,  in  a  suit  for  a  commission  for  finding  a  purchaser 
for  land,  plaintiff  alleged  that  the  owner  listed  it  with  bro- 
kers, who  listed  it  with  plaintiff's  firm,  with  the  owner's  con- 
sent, the  owner  could  show  that  shortly  before  the  alleged  list- 
ing with  such  brokers,  he  gave  them  an  option  to  purchase  a 
tract,  including  the  land  on  account  of  which  the  commission 
was  claimed,  as  tending  to  .corroborate  the  owner's  claim  that 
the  option  contract  was  the  only  agreement  between  him  and 
the  brokers.  Sterling  v.  Be  Laune  (Tex.  Civ.  App.  '07),  105 
S.  W.  1169. 

Sec.  824.     Evidence  of  prior  contract  as  to  compensation  com- 
petent where  conflicting. 
In  an  action  by  a  real  estate  broker  to  recover  commissions, 
where  the  evidence  is  conflicting  as  to  the  rate  of  oompensa- 


PLEADINGS,  PRACTICE,  ETC.  503 

tion,  evidence  of  a  prior  contract  between  the  same  parties 
for  the  sale  of  the  same  property  and  of  the  compensation 
therein  agreed  to  be  paid  is  competent.  Cobb  v.  Dunlevie,  63 
W.  Va.  398,  60  S.  E.  384. 

Sec.  825.    Afl&nnative  answer  of  purchaser  that  he  was  ready* 
etc.,  not  objectionable  as  an  opinion. 

In  an  action  by  a  broker  for  commissions  for  procuring  a 
purchaser,  the  affirmative  answer  of  the  purchaser  procured 
by  the  broker  to  the  question  as  to  whether  he  was  ready, 
willing  and  able  to  comply  with  the  terms  of  the  sale,  was  not 
objectionable  as  the  opinion  of  a  witness.  Clark  v.  Wilson, 
91  S.  W.  627,  41  Tex.  Civ  App.  450.  Compare  N.  W.  Packing 
Co.  V.  Whitney  (Cal.  App.  '07),  89  P.  981. 

Sec.  826.     Question  to  assumed  principal,  whether  her  husband 
was  acting  as  her  agent,  not  objectionable. 

A  question  addressed  to  an  assumed  principal  in  which  she 
is  asked  whether  her  husband  was  acting  as  her  agent,  is  not 
objectionable  as  calling  for  a  legal  conclusion.  Knapp  v. 
Smith,  27  N.  Y.  277. 

Sec.  827.    Conversations  with  purchaser's  agent  allowable  to 
show  unwillingness  of  purchaser. 

As  tending  to  show  that  plaintiff  procured  a  purchaser  for 
defendant's  timber,  he  may  testify  as  to  conversations  with 
the  purchaser's  agent,  at  the  appointed  time  and  place  for 
closing  up  the  purchase,  showing  his  unwillingness  to  buy  at 
the  stipulated  terms.  Oberumer  v.  Solomon,  151  Mich.  570, 
115  N.  W.  696,  15  D.  L.  N.  31. 

Sec.  828.    Defendant  may  show  another  agent  employed  by 
him  was  the  procuring  cause  of  the  sale. 

Where  a  real  estate  agent  sues  for  commissions,  defendant 
is  entitled  to  show  that  the  efforts  of  plaintiff  were  not  the 
procuring  cause  of  the  sale,  and  to  do  this  he  may  introduce 
evidence  to  the  effect  that  the  efforts  of  another  agent  em- 
ployed by  him  were  the  procuring  cause.  Mead  v.  Arnold, 
131  Mo.  App.  214,  110  S.  W.  656.     See  also  Sec.  896. 


504  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  829.    Defendant  entitled  to  introduce  in  evidence  letters 
on  the  question  of  plaintiff's  employment. 

Plaintiff,  in  an  action  by  a  broker  for  commissions  for  the 
sale  of  an  office  building,  who  had  for  nine  years  been  defend- 
ant's agent  for  handling  certain  real  estate  for  him,  claimed 
authority,  never  revoked,  to  sell  the  building,  which  defendant 
denied  ever  having  been  given;  four  years  before  the  sale  they 
had  an  agreement  as  to  plaintiff's  management  of  this  and 
other  property  of  defendant,  and  plaintiff  wrote  defendant  a 
letter  reciting  that,  in  accordance  with  their  conversation  of 
that  date,  he  thereby  stated  his  understanding  of  their  agree- 
ment as  to  commissions  he  was  entitled  to  for  the  management 
of  defendant's  properties,  the  one  in  question,  with  another, 
being  named,  following  which  were  the  terms,  the  commissions, 
and  the  duties  to  be  performed,  with  no  statement,  however, 
with  respect  to  sales;  defendant's  letter  in  reply  stated  that 
plaintiff's  letter  was  practically  correct,  then  gave  the  detailed 
terms  of  the  employment  of  plaintiff  as  agent,  and  concluded, 
"this  arrangement  is  not  to  be  considered  as  including  a  sale 
of  the  property;  I  reserve  the  right  to  deal  direct  in  case  of 
a  sale."  Held,  that  defendant  was  entitled  to  have  both  let- 
ters introduced  in  evidence  on  the  question  of  employment,  and 
it  was  not  enough  to  admit  the  concluding  paragraph  of  de- 
fendant's letter,  it  losing  much  of  its  effect  when  standing 
alone.  Willard  v.  Ferguson,  110  N.  Y.  S.  909,  125  App.  Div. 
868.     See  also  Sec.  564. 

Sec.  830.     Proof  insufficient  to  support  recovery  for  the  sale 
of  a  house. 

Defendant,  in  an  action  by  a  broker  for  commissions,  as 
owner  of  two  semi-detached  houses,  gave  a  broker  a  written 
authority,  wdthout  date,  to  sell  the  property,  without  describ- 
ing it;  defendant  testified  that  the  written  authority  was  for 
the  sale  of  the  second  house,  and  that  it  was  given  after  the 
first  house  had  been  sold;  six  disinterested  witnesses  corrobo- 
rated defendant,  and  the  purchaser  of  the  first  house  testified 
that  she  never  saw  the  broker  until  after  she  had  been  nego- 
tiating with  defendant  personally.  Held,  insufficient  to  sup- 
port a  recovery  of  commissions  for  effecting  a  sale  of  the  first 
house.    Herweg  v.  Molitor,  110  N.  Y.  S.  241,  126  App.  Div.  927. 


PLEADINGS,  PRACTICE,  ETC.  505 

Sec.  831.    Any  parol  evidence  relied  on  to  make  a  binding  con- 
tract must  be  clear  and  decisive. 

Any  parol  evidence  relied  on  to  establish  the  authority  of 
a  broker  to  make  a  binding  contract  must  be  clear  and  deci- 
sive. Stengel  v.  Sergeant  (N.  J  Eq.  '08),  68  A.  1106;  Keim 
V.  O'Reilly,  54  N.  J.  Eq.  418,  34  A.  1073.     See  also  Sec.  18. 

Sec.  831a.    Where  uncertainty  exists  identity  may  be  estab- 
lished by  evidence. 

When  the  identity  of  a  thing  referred  to  in  a  written  con- 
tract is  left  uncertain,  it  is  proper  to  hear  evidence  to  de- 
termine which  one  of  two  or  more  things  answering  the  de- 
scription was  meant  by  the  parties.  Feahody  v.  Dewey,  51 
111.  App.  260. 

Sec.  832.  Evidence  that  fell  short  of  authorizing  the  agent  to 
sign  a  contract  of  sale. 
After  defendant  had  written  several  letters  to  her  agent  in- 
structing him  to  sell  her  property  for  a  specified  price,  the 
agent  wrote  her  that  several  had  declined  her  proposition,  but 
that  he  was  dealing  with  one  who  would  pay  a  price  less  than 
that  specified;  she  wired  that  she  would  sell  for  a  sum  be- 
tween the  specified  and  offered  prices,  if  a  sale  could  be  made 
before  a  certain  time;  the  agent  sent  the  telegram  to  the  third 
person,  who  replied  that  he  would  not  increase  his  offer,  ask- 
ing the  agent  to  submit  it  again,  and  nothing  more;  this  the 
agent  did,  advising  the  defendant  to  accept  the  offer;  but  she 
instead  of  accepting,  wired  a  third  price  at  which  she  would 
sell;  finally,  upon  the  agent's  informing  her  that  he  could  do 
no  better  than  the  price  offered,  she  telegraphed  him  that  she 
would  sell  for  such  price,  but  would  only  pay  half  the  com- 
missions, and  asked  him  to  wire  in  case  of  acceptance.  Held, 
that  defendant's  letters  did  not  clearly  authorize  the  agent  to 
make, .  himself,  a  contract  of  sale  binding  on  the  principal, 
even  on  the  terms  given  therein.  Stengel  v.  Sergeant  (N.  J. 
Eq.  '08),  68  A.  1106. 

Sec.  833.     Oral  evidence  allowable  to  establish  an  independent 
agreement  to  written  contract. 

A  contract,  where  the  owner  of  real  estate,  in  order  to  in- 
duce an  agent  to  accept  a  stipulated  sum  for  his  services  in 


506  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

effecting  an  exchange,  agreed  to  pay  him  more  if  the  sale 
proved  satisfactory,  could  be  established  by  parol  evidence  as 
an  independent  agreement,  though  the  stipulation  for  payment 
of  the  first  sum  was  in  writing.  Blair  v.  Slosson,  27  Tex.  Civ. 
App.  403,  66  S.  W.  112;  Bradley  v.  Bower  (Neb.  Sup.  '04), 
99  N.  W.  490. 

Sec.  833a.    Contract  between  owner  and  purchaser  not  evi- 
dence that  broker  found  purchaser. 

A  written  agreement  by  prospective  purchasers  with  the 
owner  of  land  to  purchase  it  for  a  stated  price  is  not  suffi- 
cient proof,  in  an  action  by  the  real  estate  broker  for  his  com- 
missions, that  he  procured  the  purchasers,  since  that  agree- 
ment is  conclusive  only  between  the  parties  to  it.  Folinsbee 
v.  Sawyer,  157  N.  Y.  196,  51  N.  E.  994. 

Sec.  833b.     Court  may  receive  evidence  after  motion  to  dis- 
miss petition  for  failure  of  proof  has  been  made. 

After  plaintiff's  evidence  was  closed  a  motion  to  dismiss  for 
failure  of  proof  was  continued  until  the  following  day,  at 
which  time  plaintiff  offered  to  show  that  his  principal  knew 
of  the  contract  to  divide  commissions.  Held,  that  the  evidence 
should  have  been  received.    Bearing  v.  Sears,  3  N.  Y.  S.  31. 

Sec.   833c.     Evidence  of  contract  material  to   determine  its 
terms. 

Where  the  evidence  was  conflicting  as  to  the  terms  of  a  bro- 
ker's contract,  whether  the  contract,  as  claimed  by  the  broker 
was  harsh  and  unreasonable,  was  material  only  to  determine 
the  terms  of  the  contract  in  fact.  Lee  v.  Conrad  (Iowa  Sup. 
'08),  117  N.  W.  1096. 

Sec.  834.  Declarations  during  the  negotiations  with  purchaser 
are  admissible  as  part  of  the  res  gestae. 
In  an  action  for  a  broker's  commissions,  declarations  of  de- 
fendant's agents  as  to  the  broker's  commissions,  made  at  the 
time  they  were  negotiating  and  closing  the  deal  with  the  pur- 
chaser found  by  the  broker,  are  admissible  as  part  of  the  res 
gestae.  Fritz  v.  Chicago  Grain  &  Ele.  Co.,  136  Iowa,  699,  114 
N.  W.  193;  Mechem  on  Ag.  Sec.  715. 


PLEADINGS,  PRACTICE,  ETC.  507 

Sec.  835.     Declarations  of  owner  after  the  sale  imadmissible 
as  part  of  the  res  gestae. 

In  an  action  in  interpleader  when  the  issue  between  the  par- 
ties is  as  to  the  right  to  commissions  for  the  sale  of  real  estate, 
the  declarations  of  the  owner  of  the  property  sold,  made  some 
time  after  the  sale  has  been  effected,  and  in  the  absence  of 
defendant  to  the  effect  that  he  thought  plaintiff  was  entitled 
to  the  commission,  are  inadmissible.  Shipman  v.  Freeh,  3  N. 
Y.  S.  932,  15  Daly,  151. 

Sec.  836.    Declarations. 

The  expression  of  opinions  by  the  court  as  to  the  material- 
ity of  evidence  in  ruling  upon  offers  of  testimony,  are  not 
usually  proper  objects  of  exception,  but  declarations  or  state- 
ments may  be  assumed  by  the  court,  in  the  presence  of  the 
jury,  with  respect  to  its  weight  and  materiality,  as  to  be  prej- 
udicial and  ground  of  exception  by  the  aggrieved  party.  Haug 
V.  Hangan,  51  Minn.  558,  53  N.  W.  874.  An  agent's  authority 
can  not  be  proved  by  his  declarations,  nor  by  his  acts  done 
without  the  knowledge  or  authority  of  his  principal.  Whit- 
ney V.  Lake,  91  Pa.  St.  349;  Eastlaiid  v.  Maney,  36  Tex.  Civ. 
App.  147,  81  S.  W.  574;  Ehrenworth  v.  Putnam  (Tex.  Civ. 
App.  1900),  55  S.  W.  190.  A  person,  not  in  actual  possession 
but  authorized  to  sell,  is  a  mere  broker,  and  his  declarations 
can  not  be  admitted  to  affect  the  title  of  his  principal.  Pier 
V.  Duff,  63  Pa.  St.  59.  In  an  action  for  deceit  arising  out 
of  an  exchange  of  properties  through  a  broker  acting  for  de- 
fendant, evidence  that  defendant  stated  that  his  broker  had 
made  a  mean  trade  for  him,  and  that  he  had  made  a  poor 
trade,  warrants  a  finding  that  such  broker  was  acting  for  de- 
fendant in  effecting  the  exchange.  Arnold  v.  Teal,  182  Mass. 
1,  64  N.  E.  413. 

The  question  of  whether  a  broker  employed  to  procure  a 
purchaser  was  the  efficient  cause  of  the  sale,  or  whether  the 
means  employed  by  him  and  his  efforts  resulted  in  a  sale, 
must  be  deduced  from  the  facts  relating  to  the  transaction, 
and  not  from  the  conclusion  of  a  witness.  Geiger  v.  Riser 
(Colo.  Sup.   10),  107  P.  267. 


508  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  837.   •Self-serving  declarations  inadmissible  as  evidence. 

In  an  action  for  commissions  by  a  real  estate  broker  on  a 
contract  under  which  it  had  earned  its  commissions,  where  the 
contract  of  sale  was  signed,  defendant's  self-serving  declara- 
tion that  the  payment  of  commissions  was  to  await  the  de- 
livery of  the  deeds  was  of  no  effect.  Dike  v.  Haight,  108  N. 
Y.  S.  1066.  In  an  action  for  a  broker's  commissions,  a  state- 
ment by  plaintiff  as  to  a  sale  of  the  land,  and  what  he  would 
be  entitled  to,  was  self-serving  and  inadmissible.  Leutschner 
v.  Patrick   (Tex.  Civ.  App.   '07),  103  S.  W.  664. 

In  an  action  for  commissions  for  the  sale  of  defendant's 
land,  testimony  of  plaintiff  that  he  expected  to  be  paid  for 
the  alleged  services  was  properly  excluded.  Latta  v.  Lockman, 
139  Iowa,  626,  117  N.  W.  962. 

Sec.  838.    Admissions  against  interest. 

In  an  action  by  a  real  estate  broker  for  commissions,  defend- 
ant's admission  that  plaintiff  procured  the  sale,  as  appears  in 
the  contract  between  the  vendor  and  purchaser,  was  evidence 
for  the  plaintiff.    Dike  v.  Haight,  108  N.  Y.  S.  1066. 

Where,  in  an  action  by  a  broker  for  commissions  on  a  sale 
of  real  estate,  defendant's  answer  admitted  the  employment 
of  plaintiff  as  a  broker,  and  it  appeared  that  the  contract  of 
exchange  of  properties  negotiated  by  plaintiff  was  signed 
through  his  efforts,  these  facts  took  the  case  out  of  the  purview 
of  the  Penal  Act  making  it  a  misdemeanor  for  one  to  offer 
real  estate  for  sale  without  written  authority.  Hough  v.  Bald- 
win, 99  N.  Y.  S.  545,  50  Misc.  546. 

In  a  broker's  action  for  compensation,  declarations  against 
interest  by  one  who  would  share  in  the  broker's  commissions, 
and  was  therefore  beneficially  interested  in  the  result  of  the  ac- 
tion, were  admissible  in  evidence.  Kinname  v.  Conroy  (Wash. 
Sup.   '09),  101  P.  223. 


CHAPTER  XIII. 
ESTOPPELS. 

Sec.  839.    Estoppel  by  representations  or  conduct. 

One  may  be  estopped  by  his  representations  or  conduct  from 
repudiating  a  transaction.  Christensen  v.  Wooley,  41  Mo.  App. 
53;  Butcher  v.  Empire  League,  113  N.  Y.  S.  1083. 

Sec.  840.     Objecting  on  one  ground  estopped  to  set  up  another. 

Where  defendant  authorized  a  broker  to  sell  certain  lots 
for  $1,800  cash,  and  the  broiler  sold  for  $50  cash,  and  the  re- 
mainder on  delivery  of  the  deed  and  abstract,  but  defendant 
refused  to  complete  the  sale,  claiming  that  the  authorization  \va.s 
$1,800  net  to  him,  without  deduction  of  the  broker's  commis- 
sions, the  defendant  was  estopped  subsequently  to  assert,  in 
an  action  brought  by  the  broker  to  recover  compensation  for 
his  services,  that  he  was  not  bound  to  pay  the  broker,  because 
the  sale  did  not  comply  with  his  instructions  as  to  pa^^ment 
of  price.  Donley  v.  P(»'ter.  119  Iowa,  542,  93  N.  W.  574; 
Mooney  v.  Elder,  56  N.  Y.  238;  Railway  Co.  v.  McCarthy,  96 
U.  S.  258,  2.67;  Fuller  v.  Brady,  22  111.  App.  174;  Fiske  v. 
Sinle,  87  Cal.  313,  25  P.  430;  Crouse  v.  Bhodes,  50  111.  App. 
120;  Johnsofi  V.  Wright,  124  Iowa,  61,  99  N.  W.  103. 

In  other  jurisdictions  it  is  held  that  unless  the  broker  has 
suffered  injury  by  reason  of  the  defendant  not  objecting  at 
the  time  upon  the  ground  subsequently  sought  to  be  asserted, 
the  defendant  may  still  avail  himself  of  the  defense.  The 
List  &  Son  Co.  v.  Chase,  80  0.  St.  42;  Peters  v.  Anderson,  88 
Va.  1051,  14  S.  E.  974;  Provident  Tr.  Co.  v.  Darraugh,  168 
Ind.  29,  78  N.  E.  1030;  Stearns  v.  Jennings,  128  Wis.  379, 
107  N.  W.  327. 

Defendant,  who  contracted  to  pay  plaintiff  a  certain  amount 
broker's  commissions  if  plaintiff  would  buy  for  him  the  coal 
on  a  certain  farm,  is  not  estopped  to  assert,  as  against  plain- 

509 


510  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

tiff's  claim  for  commissions,  that  one  of  the  owners  was  an 
infant,  so  that  a  binding  contract  for  the  sale  of  all  the  coal 
which  was  contemplated  was  not  obtained;  he  not  having  em- 
ployed plaintiff  with  knowledge  of  the  infancy  of  such  owner, 
though  he  had  not  based  his  refusal  to  carry  out  the  contract 
of  purchase  on  such  infancy.  MitcJiell  v.  Weddington  (Ky, 
Ct.  App.   '09),  122  S.  W.  802. 

Sec,  841.  Owners  estopped  to  claim  that  because  they  refused 
to  carry  out  agreement  there  was  no  sale. 

"Where  the  owners  of  real  estate  agreed  to  sell  to  a  purchaser 
procured  by  their  broker,  and  the  purchaser  paid  $10  of  the 
price,  the  owners  were  estopped,  when  sued  for  commissions 
for  making  the  sale  to  assert  that  because  they  subsequently 
refused  to  carry  out  their  agreement  there  was  no  sale.  Gwin- 
nup  V.  Sibert,  106  Mo.  App.  709,  80  S.  W.  589.  See  also  Sec. 
861. 

Sec.  842.  After  acceptance  of  purchaser  owner  can  not  object 
to  pay  broker  on  account  of  purchaser's  inability  to  pay 
for  the  property. 

One  who  employs  a  broker  to  negotiate  a  sale  can  not,  in 
an  action  for  the  commissions,  avail  himself  of  the  objection 
that  the  customer  is  unable  to  pay  for  the  premises,  if  the 
vendor  has  accepted  the  customer  as  satisfactory,  and  has  con- 
veyed the  premises  to  him.  Travis  v.  Graham,  48  N.  Y.  S. 
736,  23  App.  Div.  214.     Compare  Sees.  694,  726. 

Sec.  843.    Owner  estopped  to  say  contract  too  indefinite. 

An  offer  to  buy  290,000  feet  of  land  to  be  taken  from  a 
parcel  containing  500,000  feet,  said  290,000  feet  to  be  divided 
as  to  front  and  back  lands  from  the  whole  parcel  as  nearly 
equal  as  is  possible,  where  accepted  by  the  owner  of  the  land, 
entitles  the  broker  employed  to  find  a  purchaser  therefor  to 
his  commissions,  and  the  owner  will  not  be  heard  to  say  it  is 
too  indefinite.     Monk  v.  Parker.  180  Mass.  246,  63  N.  E.  793. 

Sec.    844.     Purchaser    who    paid    money    to    vendor's    agent 
estopped  to  deny  the  latter  represented  him. 
A  purchaser  who  paid  money  to  a  real  estate  agent  employed 
by  his  vendor  to  induce  the  agent  to  assist  him  in  the  trans- 


PLEADINGS,  PRACTICE,  ETC.  511 

action  is  estopped  to  deny  that  the  agent  is  his  agent,  when 
suit  is  subsequently  brought  by  the  vendor  to  reform  the  deed 
which  was  drawn  by  the  agent  for  both  parties,  wherein  a 
reservation  of  growing  crops  was  by  mistake  omitted,  since 
the  mistake  of  the  agent  is  the  mistake  of  both  principals. 
Warrick  v.  Smith,  137  111.  504;  27  N.  E.  709 ;  Sei/mour  v. 
Slide,  etc.,  Gold  Mines,  42  Fed.  633.     See  also  Sec.  258. 

Sec.  845.    Receipt  of  $300  estopped  owner  to  say  contract  of 
agency  was  invalid. 

Plaintiff,  vendee,  who  brought  suit  against  agents  to  re- 
cover money  paid  on  an  invalid  contract  of  sale,  can  take 
nothing  by  the  fact  that  the  appointment  of  the  agent  to  sell 
the  land  was  verbal;  the  receipt  of  $300  by  the  owners  would 
estop  them  to  deny  the  agency.  Bogart  v.  Crosby,  80  Cal,  195, 
22  P.  84;  Morris  v.  Terrill,  2  Rand.  (Va.),  6. 

Sec,  846.  In  a  suit  against  broker  to  account,  vendor  estopped 
to  allege  invalidity  of  sale. 
Where  a  vendor  of  land  instituted  a  suit  against  his  agents, 
real  estate  brokers,  to  recover  a  part  of  the  purchase  money 
in  their  hands  and  retained  by  them  as  commissions,  he  was 
thereby  estopped  to  allege  the  invalidity  of  the  sale  as  against 
said  brokers,  and  therefore  it  was  immaterial  to  inquire  whether 
such  sale  was  or  was  not  valid  under  the  statute  of  frauds. 
Christensen  v.  Wooley,  41  Mo.  App.  53. 

Sec.  847.    Principal  estopped  to  claim  rent  paid  by  tenant  to 
purchaser. 

Where  a  general  agent,  having  power  to  sell  a  piece  of  land, 
limited  only  in  the  method  of  payment,  and  the  agent  having 
control  of  a  building  on  the  land,  upon  a  sale  of  the  land  at 
public  auction,  announces,  in  the  presence  of  a  tenant,  that 
the  purchaser,  after  a  named  date,  shall  be  entitled  to  the 
rents,  and  the  special  agent,  upon  the  payment  for  a  part  of 
the  time  to  the  purchaser,  expresses  approval  of  it,  the  prin- 
cipal is  estopped  from  claiming  rent  paid  to  such  purchaser  by 
such  tenant.     Knox  v.  Barnett,  18  Fla.  594. 


512  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  848.     Parties  discovering  double  agency  pending  negotia- 
tions aiid  not  dissenting  thereto  estopped. 

If  pending  negotiations  the  parties  discover  the  double 
agency  of  the  broker,  and,  without  objecting,  go  on  and,  never- 
theless, consummate  the  transaction,  they  can  not,  by  reason 
thereof,  refuse  to  pay  commissions.  Cassaday  v.  Carrahmi, 
119  Iowa,  500,  93  N.  W.  386. 

Sec,  849.  Bank  receiving  benefits  estopped  to  deny  authority 
to  sell. 
Where  a  bank  agrees  to  pay  a  real  estate  broker  a  commis- 
sion on  the  sale  of  land  it  can  not  set  up  as  a  defense  that, 
under  the  law  of  the  State  in  which  the  land  is  situate  a  bank 
is  prohibited  from  dealing  in  real  estate,  where  it  has  availed 
itself  of  the  benefits  of  the  sale.  Church  v.  Johnson,  93  Iowa, 
544,  61  N.  W.  916. 

Sec.  850.  Vendee  knowing  of  fraud  of  agent  can  not  insist 
on  the  validity  of  the  sale. 
Where  one  takes  a  conveyance  from  an  agent  authorized  to 
sell  and  convey  land,  knowing  of  the  fraud  or  breach  of  trust 
of  the  agent,  he  can  not  insist  on  the  validity  of  the  sale. 
Morris  v.  Terrill,  2  Rand.   (Va.)  6.     See  also  Sec.  845. 

Sec.  851.    Landlord  estopped  to  deny  agent's  authority  to  ac- 
cept  waiver  of  privilege  of  renewal. 

Where  a  landlord  accepted  the  waiver  of  the  tenant's  privi- 
lege of  renewal,  procured  by  his  agent  from  the  tenant,  he 
was  estopped  to  deny  the  agent's  authority  in  the  premises. 
No.  121  Madison  Ave.  v.  Osgood,  18  N.  Y.  S.  126. 

Sec.  852.     Broker  not  estopped  by  error  to  plead  incorrectness. 

The  delay  of  a  broker  to  complain  of  an  order  in  regard 
to  his  commissions  on  a  sale  made  by  him  for  the  receiver  of 
an  insolvent  bank,  does  not  estop  him  from  asserting  its  in- 
correctness, in  the  absence  of  prejudice  occasioned  thereby. 
Peters  v.  Anderson,  88  Va.  1051,  14  S.  E.  974.  See  also 
Sec.  840. 


PLEADINGS,    PRACTICE,   ETC.  513 

Sec.  853.     Agent  not  estopped  to  claim  commissions  because 
memo,    of   agreement   described  defendant  as   owner  of 
property  to  be  sold. 
An  agent  under  a   contract  to  sell  real  estate   on   commis- 
sion is  not  estopped  from  claiming  his  commissions  because  the 
memorandum    of    the    agreement    describes    defendant    as    the 
owner  of  the  property  to  be  sold.     Condee  v.  Barton,  62  Cal.  1. 

Sec.  854.     Seller  estopped  to  allege  its  representative  had  no 
authority  to  employ  a  broker. 

Where  a  real  estate  broker  makes  a  sale,  the  seller  accept- 
ing the  sale  and  claiming  benefits  thereunder  is  precluded 
from  setting  up,  as  against  the  broker's  claim  for  commissions, 
the  want  of  authority  in  its  representative  to  employ  such 
broker.  Wathins  Land  Mtge.  Co.  v.  Thetford  (Tex.  Civ.  App. 
'06),  96  S.  W.  72. 

Sec.  855.     Principal  not  estopped  to  show  commissions  not  to 
be  paid  for  until  contract  fully  completed. 

In  an  action  for  commissions  for  procuring  purchasers  of 
land,  a  letter  from  the  defendant  to  the  plaintiffs  stating  that 
they  had  not.  received  all  the  earnest  money,  part  of  it  remain- 
ing in  escrow  in  the  bank  until  it  should  be  determined  if 
they  were  entitled  to  it,  and  that  they  would  pay  the  balance 
as  soon  as  they  received  that  amount,  did  not  constitute  an 
estoppel  against  a  claim  by  the  defendants  that  they  were  not 
to  pay  commissions  until  the  contract  was  fully  completed. 
Tracey  Land  Co.  v.  Polk  Co.  Ld.  &  Loan  Co.,  131  Iowa,  40, 
107  N.  W.  1029. 

Sec.  856.    Joint  owner  not  repudiating  agent's  fraud,  estopped 
to  deny  connection  therewith. 

A  joint  owner  of  real  estate  who  consents  to  a  listing  there- 
of by  his  co-owner  with  real  estate  agents  for  sale,  receives 
part  of  the  consideration,  and  never  repudiates  the  sale  made 
by  the  agents,  after  discovering  that  they  were  guilty  of  fraud, 
is  estopped  to  deny  connection  with  the  fraud,  but  will  be  held 
liable  only  to  the  extent  of  the  benefit  actually  received.  Alger 
V.  Anderson,  78  Fed.  729.    See  also  Sec.  329. 


514  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  857.     Brokers  purchasing  bonds,  pretending  to  act  for 
third  parties,  estopped,  when  found  worthless,  to  recover. 

Plaintiffs,  as  brokers,  entered  into  a  contract  for  the  pur- 
chase of  certain  bonds,  claiming  to  act  for  an  undisclosed  prin- 
cipal, and  stipulating  that  they  should  in  no  manner  be  held 
liable  on  the  contract,  which,  as  they  had  reason  to  believe, 
was  made  by  defendant  under  a  misapprehension  as  to  the 
value  of  the  bonds;  in  fact,  they  were  acting  for  themselves, 
and  there  was  no  other  principal.  Held,  that  they  could  not 
maintain  an  action  on  the  contract,  not  as  agents  for  an  undis- 
closed principal,  because  no  such  principal  existed,  nor  as 
principal,  because  by  their  fraudulent  misrepresentation  they 
had  secured  immunity  from  liability  on  the  contract  as  such, 
and  estopped  themselves  from  claiming  rights  which  were  cor- 
relative with  such  liability.  Pahie  v.  Loeh,  96  Fed.  164,  37 
C.  C.  A.  434. 

Sec.   858.    Equitable   owner   estopped  to   deny   agent's   au- 
thority. 

A  contract  of  sale  of  realty  was  made  by  one  having  no  title 
nor  authority  in  writing  to  execute  such  an  instrument;  the 
attorney  for  the  purchaser  was  informed  by  the  equitable  owner 
that  such  person  was  authorized  to  sell,  and  was  directed  to  see 
him  in  reference  to  the  matter.  Held,  under  code  of  civil 
procedure,  that  such  statement  was  a  ratification  of  the  agent's 
authority  which  estopped  the  equitable  owner  from  denying  it. 
Gregg  v.  Carey,  4  Cal.  App.  354,  88  P.  282. 

Sec.  859.     Broker's  silence  ineffective  to  estop  from  recovering 
commissions. 

Where  defendant,  a  real  estate  broker,  contracted  to  pay 
plaintiff,  another  broker,  one  dollar  per  acre  if  he  would  fur- 
nish a  purchaser  for  a  certain  farm  at  $37.50  per  acre,  includ- 
ing the  crops,  and  defendant,  with  full  knowledge  of  plaintiff's 
rights  thereunder,  voluntarily  sold  the  farm  for  $35  per  acre, 
without  the  crops,  to  a  purchaser  furnished  by  plaintiff,  the 
latter  was  not  estopped  by  his  silence,  after  introducing  such 
purchaser  and  defendant  had  informed  him  of  the  rise  in  the 
price,  to  claim  full  commissions  on  the  subsequent  consumma- 


PLEADINGS,  PRACTICE,  ETC.  515 

tion  of  the  sale.    Provident  Tr.  Co.  v.  Darraugh,  168  Ind.  29, 

78  N.  E.  1030.    See  also  Sec.  115. 

Sec.  860.  Broker  turning  property  over  to  another  to  sell, 
estopped  to  claim  commissions  on  sale  by  latter. 

An  agent  for  the  sale  of  lands  who  turns  the  property  over 
to  another  to  sell,  with  consent  of  the  owner,  and  thereafter 
does  nothing  to  effect  a  sale,  loses  his  right  to  a  commission, 
not  on  the  ground  of  assignment,  but  because  of  a  waiver  of 
his  right  to  make  a  sale;  and  he  is  estopped  to  assert  any  in- 
terest in  the  commissions  resulting  from  the  sale  made  by  the 
other.    Munson  v.  Mahon,  135  Iowa,  335,  112  N.  W.  775. 

Sec.  861.  Owner  concluding  sale  with  purchaser  furnished  by 
broker  estopped  to  claim  it  was  done  independently. 

Where  defendants  gave  plaintiff  an  option  to  effect  a  sale 
of  coal  properties,  if  sold  within  a  certain  time,  on  a  stipu- 
lated commission,  and  agreed  to  assist  plaintiff  in  the  sale 
thereof,  defendants  will  not  be  heard  to  say  that  a  sale  to  one 
with  whom  plaintiff  was  negotiating,  made  during  the  con- 
tinuance of  the  option,  was  the  result  of  their  independent  ef- 
forts. Wells  V.  Hocking  Valley  Coal  Co.,  137  Iowa  526,  114 
N.  W.  1076.    See  also  Sec.  841. 

Sec.  862.  When  action  tried  on  theory  of  written  contract, 
estopped  on  appeal  to  claim  it  was  verbal. 

Where  an  action  was  tried  by  both  parties  on  the  theory  that 
the  contract  sued  on  was  a  written  one,  and  defendant  requested 
several  instructions  which  so  stated,  he  could  not,  on  appeal,  be 
heard  to  contend  that  the  contract  was  verbal.  McDermott  v. 
Mahoneij  (Iowa  Sup.  '06),  106  N.  W.  925. 

Sec.  862a.  That  broker  and  purchaser  conspired  to  defraud 
vendor  did  not  estop  the  purchaser  to  sue  for  misrepre- 
sentation as  to  the  acreage  purchased. 

That  vendor's  broker,  the  purchaser  and  another  conspired 
to  defraud  vendor  by  retaining  a  part  of  the  price,  did  not 
estop  the  purchaser  to  sue  the  vendor  for  the  broker's  misrep- 
resentation as  to  acreage.  F arris  v.  Gilder  (Tex.  Civ.  App. 
'09),  115  S.  W.  645. 


516  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  862b.    Conspiracy  of  parties  to  sale  to  deprive  broker  of 
commissions. 

It  is  immaterial  to  a  real  estate  agent's  rights  to  a  commis- 
sion on  a  sale  procured  by  him  that  he  did  not  obtain  an  offer 
for  his  principal  on  terms  as  good  as  those  on  which  the  sale 
was  made,  where  the  parties  to  the  sale  conspired  to  deprive 
him  of  his  commissions.  Lipscomb  v.  Mastin  (Mo.  App.  '10), 
125  S.  W.  1177. 


CHAPTER  XIV. 

SECTION.  SECTION. 

863.     Dismissal,  when  proper.  866.     Prima  facie  case. 

804.     Dismissal,  when  error.  867-873.     Issues. 

865.     Non-suit.  874-887a.     Variances. 

Sec.  863.    Dismissal  of  action,  when  proper. 

A  motion  to  direct  a  verdict  for  defendant  without  special 
ground,  should  be  granted  where  the  plaintiff's  evidence 
wholly  fails  to  show  such  performance  on  his  part  as  is  neces- 
sary to  entitle  him  to  recover.  Gerding  v.  Raskins,  141  N.  Y. 
514,  36  N.  E.  601.  Where  an  action  is  brought  to  recover  com- 
missions on  a  loan  which  a  certain  person  is  alleged  to  have 
negotiated  for  defendants,  in  the  absence  of  proof  that  such 
person  was  authorized  to  act  as  defendant's  agent  in  the  trans- 
action, the  action  will  be  dismissed,  without  being  submitted  to 
the  jury.    McLaughlin  v.  Ranger,  66  N.  Y.  S.  450,  32  Misc.  732. 

Sec.  864.    Dismissal  of  action,  when  error. 

Evidence  in  an  action  to  recover  commissions  for  the  sale 
of  real  estate,  was  held  to  show  that  the  owner  had  reasonable 
cause  to  believe  that  the  party  to  whom  he  sold  the  property 
was  sent  to  him  by  the  agent,  so  as  to  render  it  error  to  dismiss 
the  case.    Benninger  v.  Burch,  90  Minn.  43,  95  N.  W.  578. 

Sec.  865.     Non-suit. 

In  the  absence  of  any  evidence  to  show  that  the  sale  by  de- 
fendant to  his  brother  and  the  subsequent  conveyance  by  him 
to  B.,  was  done  to  defraud  plaintiff  of  his  commissions,  he  could 
not  recover  them  from  defendant.  Bennett  v.  Kidder,  5  Daly, 
(N.  Y.)   512;  Ham  v.  Weber,  43  N.  Y.  S.  1059,  19  Misc.  485. 

Sec.  866.    Prima  facie  case. 

Testimony  that  a  deed  was  tendered  to  the  principal,  "in  pur- 
suance of  an  agreement  between"  the  parties,  is  sufficient  prima 

517 


518  AMERICAN    LAW   REAI;   ESTATE   AGENCY. 

facie,  to  sustain  a  finding  that  it  was  delivered  within  thirty 
days.  Beehe  v.  Roberts,  3  E.  D.  Smith  (N.  Y.)  194.  A  con- 
tract of  sale  signed  by  the  purchaser,  unilateral  when  tendered 
to  the  vendor,  is  prima,  facie  evidence  of  the  purchaser's  readi- 
ness and  willingness  to  buy,  Flynn  v.  Jordal,  124  Iowa  457, 
100  N.  W.  325.  Evidence  by  plaintiff  that  he  did  business  as  a 
real  estate  agent,  though  he  assisted  in  the  foundry  business, 
and  that  the  usual  commissions  allowed  such  agents  for  selling 
property  of  the  character  in  suit  was  five  per  cent.,  was  compe- 
tent as  prima  facie  evidence  of  value.  Ashhy  v.  Holmes,  68 
Mo.  App.  23.  Proof  that  a  party  has  executed  a  formal  con- 
tract to  convey  certain  property  in  exchange  for  other,  is  suffi- 
cient prima  facie  evidence  of  his  title  thereto,  in  an  action  by  a 
broker  for  commissions  in  effecting  an  exchange.  Muscovitz  v. 
Hornherger,  46  N.  Y.  S.  462,  20  Misc.  558. 

Sec.  867.    Issue  as  to  which  of  several  brokers  effected  a  sale. 

On  the  issue  of  which  of-  several  rival  brokers  effected  a 
sale  so  as  to  entitle  him  to  commissions,  it  is  proper  to  show 
by  the  purchaser  his  state  of  mind  regarding  the  purchase  after 
he  had  left  the  broker  claiming  the  commission.  McGuire  v. 
Carlson,  61  111.  App.  696. 

Sec.  868.  Issue  as  to  whether  defendant  agreed  to  pay  plain- 
tiff twenty-five  cents  per  acre  and  five  per  cent,  on  balance. 
In  an  action  for  a  balance  claimed  to  be  due  for  selling  a  large 
tract  of  land  for  defendant,  where  the  issue  is  whether  defendant 
agreed  to  pay  plaintiff  the  sum  of  twenty-five  cents  per  acre  and 
a  commission  of  five  per  cent,  on  the  balance,  the  testimony  of  a 
real  estate  agent  is  competent  to  show  that  the  compensation 
claimed  by  plaintiff  is  reasonable  and  not  unusual.  Greer  v. 
Laws,  56  Ark.  37,  18  S.  W.  1038. 

Sec.  869.     Issue  as  to  indebtedness  existing  at  beginning  of 
action  for  undisclosed  services. 

In  an  action  for  a  broker's  commissions,  the  only  allegation 
in  plaintiff's  complaint,  showing  the  liability  of  defendant,  was 
that  within  two  years  prior  thereto  the  defendant  became  in- 
debted to  plaintiff's  assignor  in  a  certain  sum  for  services  ren- 


PLEADINGS,   PRACTICE,   ETC.  519 

dered  by  him  to  the  defendant  at  his  special  instance  and 
request.  Held,  that  the  only  issue  tendered  by  the  plaintiff 
was  the  indebtedness  existing  at  the  time  the  action  was  com- 
menced for  certain  undisclosed  services,  and  on  that  issue  it 
was  competent  for  defendant  to  offer,  and  for  the  court  to 
consider,  any  evidence  which  would  tend  to  show  that,  even 
though  the  services  were  rendered,  they  did  not  create  an  in- 
debtedness against  the  defendant,  and  defendant's  failure  to 
set  up  in  answer,  as  a  defense,  that  the  assignor  had  received  a 
commission  from  the  purchaser,  did  not  preclude  him  from 
offering  evidence  thereof,  or  the  court  from  considering  its  ef- 
fect. Bauer's  Law  &  Coll.  Co.  v.  Bradbury,  3  Cal.  App.  256, 
84  P.  1007.     Compare  Sec.  678. 

Sec.  870.    Issue  in  action  for  commissions  for  sale  of  real  estate 
to  stock  company. 

In  an  action  for  commissions  for  effecting  a  sale  of  land,  the 
petition  alleged  that  the  land  was  placed  in  plaintiffs'  hands 
by  a  written  contract  of  sale  at  the  price  of  $50,000,  and  that 
they  were  to  receive  ten  per  cent,  commission  on  the  amount 
realized  by  the  defendant,  to  be  paid  when  the  purchase  price 
was  received,  whether  the  land  was  sold  directly  or  through 
the  organization  of  a  stock  company  and  the  money  value  of 
the  lands  realized  by  a  sale  of  the  stock;  that  a  mining  com- 
pany was  organized  to  which  defendant  conveyed  the  land,  re- 
ceiving practically  all  of  the  stock  of  the  company,  the  par 
value  of  which  was  $150,000,  that  defendant  had  received 
$100,000  from  the  sale  of  the  stock,  on  which  amount  plain- 
tiffs were  entitled  to  commissions.  Held,  that  plaintiffs  were 
not  entitled  to  show  that  after  selling  300  shares  of  stock  at 
33  1/3  cents  on  the  dollar,  and  having  a  purchaser  ready  to 
buy  all  the  stock  at  that  figure,  defendant  raised  the  price  to 
forty  cents,  the  action  not  being  for  damages  for  breach  of 
contract,  but  proceeding  on  the  theory  of  an  actual  sale.  Cos- 
grove  V.  Leonard  Mer.  &  Realty  Co.,  175  Mo.  100,  74  S.  W.  986. 

Sec.  871.     Issue  as  to  procuring  cause  of  sale,  what  not  con- 
trolling. 
The  fact  that  plaintiff  did  not  inform  defendant  that   the 
purchaser  was  his  customer  before  the  sale,  was  not  controlling 


520  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

on  the  issue  as  to  whether  plaintiff  was  the  procuring  cause 
of  the  sale  to  him.  Metcalfe  v.  Gordon,  83  N.  Y.  S.  808,  86 
App.  Div.  368. 

Sec.  871a.    To  avoid  a  contract  issue  must  be  presented  by  the 
pleadings. 

A  land  contract  entered  into  by  the  purchaser's  agent  can 
not  be  avoided  by  the  purchaser,  in  a  suit  to  enforce  the  pur- 
chase money  notes,  because  the  agent  also  represented  the 
vendor,  where  that  fact  was  not  presented  in  the  pleadings. 
Anderson  v.  Creston  Land  Co.,  96  Va.  257,  31  S.  E.  82. 

Sec.  872.     Issue  presented  by  amendment  to  answer  false  and 
misleading. 

On  the  trial  of  a  cause  the  defendant  obtained  leave  to  amend 
his  answer  by  alleging  "that  after  making  the  sales  named 
they  (plaintiffs)  complained  that  the  prices  were  too  high,  as 
named  by  defendant,  and  made  no  effort  to  sell  the  same,  but 
neglected  the  same  to  the  defendant 's  damage  and  injury. ' '  Held, 
that  the  matter  involved  in  the  amendment,  not  being  perti- 
nent to  the  case,  was  calculated  to  raise  a  false  issue  and  dis- 
tract the  attention  of  the  jury  from  the  real  questions  for  their 
determination.     Marshall  v.  Golel,  32  Neb.  9,  48  N.  W.   898. 

Sec.  873.  Issue  whether  authority  to  make  a  sale  was  subject 
to  wife's  approval. 
In  an  action  by  a  broker  for  commissions  for  making  a  sale 
of  realty,  where  the  defense  set  up  in  the  answer  was,  that  the 
broker  was  employed  to  sell  the  property  upon  the  express 
understanding  that  any  sale  of  the  property  w^ould  be  subject 
to  the  approval  of  the  owner's  wife,  and  that  the  wife  did  not 
consent  to  the  sale  made  by  the  broker,  but  disapproved  of  it, 
and  refused  to  sign  the  deed,  the  issue  to  be  determined  was 
not,  whether  the  sale  made  by  the  broker  was  subject  to  the 
wife's  approval,  but  rather,  whether  or  not  authority  to  make  a 
sale  was  conditioned  upon  the  wife's  approval.  Baker  &  Co.  v« 
DeYitt  (Tex.  Civ.  App.  '08),  110  S.  W.  528. 


PliEADINGS,    PRACTICE,   ETC.  521 

Sec.  874.  Variance,  broker  can  not  declare  as  for  perform- 
ance and  recover  damages  for  breach. 
Under  a  written  agreement  of  a  land  owner  to  pay  a  broker  a 
certain  sum  if  he  should  send  or  cause  to  be  sent  to  the  land 
owner  a  person  with  whom  the  latter  ' '  may  see  fit  and  proper  to 
effect  a  sale  or  exchange  of  the  land,"  the  broker  can  not  re- 
cover the  sum  stipulated  without  proof  of  the  sale  or  exchange 
of  the  land,  nor  on  a  quantum  meruit  for  services  in  negotia- 
tions for  such  sale  or  exchange,  without  proof  that  such  nego- 
tiations were  rendered  fruitless  by  the  fault  of  the  land  owner. 
Walker  v.  Tirrell,  101  Mass.  257;  Drury  v.  Newman,  99  Mass. 
256. 

Sec.  875.    On  claim  for  selling  property,  broker  can  not  re- 
cover as  a  middleman. 

A  complaint  which  alleged  that  complainants  M^ere  real  estate 
brokers  and  that  defendant,  well  knowing  the  fact,  gave  them 
an  option  on  his  property  and  agreed  to  pay  a  commission  for 
their  services  in  case  of  a  sale,  and  that  they  procured  a  pur- 
chaser, and  in  pursuance  of  negotiations  initiated  by  them  a 
sale  was  effected,  stated  a  cause  of  action  on  the  theory  that  the 
plaintiffs  were  brokers,  and  hence  they  could  not  recover  on 
proof  that  they  were  mere  middlemen.  Southack  v.  Lane,  65 
N.  Y.  S.  629,  32  M.  141 ;  Walker  v.  Osgood,  98  Mass.  348. 

Sec.  876.     In  order  to  take  advantage  of  variance  defendant 
must  make  timely  objection. 

In  order  to  take  advantage  of  a  variance  between  the  allega- 
tions of  a  petition  and  the  proof,  defendant  must  make  objec- 
tion in  the  trial  court  to  the  introduction  of  evidence  on  that 
ground  and  show  by  affidavit,  in  what  respect  he  has  been 
misled  thereby.  Fisher,  etc.,  E.  E.  Co.  v.  Staed  R.  Co.,  159  ]Mo. 
562,  62  S.  W.  443 ;  Gregg  v.  Loomis,  22  Neb.  174,  34  N.  W.  355. 

Sec.  877.     Allegation  to  pay  5  per  cent,  on  any  amount,  not 
sustained  by  evidence  if  sold  for  $5,000. 

An  allegation  that  defendant  agreed  to  pay  5  per  cent,  on 
the  amount  for  which  he  should  sell  the  mill  of   defendant, 


522  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

whatever  it  might  amount  to,  is  not  sustained  by  evidence  that 
defendant  agreed  to  pay  plaintiff  5  per  cent,  if  he  would  sell 
the  mill  for  $5,000;  and  this  forms  a  fatal  variance  between 
the  contract  declared  on  and  that  proved.  Menifee  v,  Higgins, 
57  111.  50. 

Sec.  878.    Allegation  that  rights  sold  comprised  50,000  acres 
not  sustained  by  proof  of  35,000. 

Counts  in  a  complaint  alleged  that  plaintiff  acted  for  a  third 
person  in  a  sale  to  defendant  of  turpentine  rights  belonging 
to  a  third  person;  that  the  rights  sold  extended  to  the  trees 
comprised  in  50,000  acres,  that  the  consideration  promised  to 
defendant  wf ::  a  net  price  per  acre,  to  be  paid  to  the  third  per- 
son, and  commissions  to  be  paid  to  plaintiff;  the  evidence 
showed  that  what  was  actually  sold  was  the  third  person's  tur- 
pentine rights  then  owned  within  a  described  territory  said  to 
contain  50,000  acres,  less  3,000  acres  reserved,  together  with 
such  turpentine  rights  within  that  territory  as  might  be  ac- 
quired by  the  third  person  within  a  fixed  period;  the  rights 
so  owned  and  sold,  including  subsequent  acquisitions  did  not 
extend  to  land  exceeding  35,000  acres.  Held,  a  fatal  variance 
between  the  allegations  and  the  proof.  Moses  v.  Beverly,  137 
Ala.  473,  34  S.  825. 

Sec.  879.     No  variance  between  allegation  for  fee  on  cost  of 
houses,  and  proof  including  the  grounds. 

In  an  action  by  a  real  estate  broker  for  commissions  the 
declaration  alleged  that  plaintiff  rendered  services  in  procur- 
ing for  defendants  a  contract  for  the  erection  of  a  number  of 
houses,  and  that  defendants  agreed  to  pay  him  a  commission 
of  one  per  cent,  of  "the  amount  of  the  contract  price  for  the 
erection  of  said  houses."  Plaintiff  claimed  commissions  on  the 
sum,  which  the  evidence  showed  included  both  the  cost  of  the 
houses  and  of  the  lands  on  which  they  were  erected,  this  entire 
sum  being  secured  by  mortgage  to  defendants  from  the  other 
party  to  the  contract;  the  contract  for  commissions  was  oral, 
and  plaintiff  testified  that  both  parties  understood  that  the  com- 
mission was  to  be  calculated  on  the  total  amount  of  the  mort- 
gages.    Held,  that  there  was  no  material  variance  between  the 


PLEADINGS,  PRACTICE,  ETC.  523 

pleadings  and  the  proof.  Richards  v.  Bichman,  5  Pennewill 
(Del.)  558,  64  A.  238;  Smith  v.  Sharp  (Ala.  Sup.  '09),  50 
S.  381. 

Sec.  879a.    Slig^ht  excess  in  acreage  not  a  material  variance. 

Findings  of  fact  in  an  action  for  commissions  for  the  sale 
of  land,  that  the  purchasers  to  whom  the  agent  sold  took  320 
acres,  did  not  limit  the  amount  of  land  sold  to  320  acres  so 
as  to  defeat  the  action,  the  authority  being  to  sell  327  acres, 
where,  in  answer  to  another  question,  if  there  was  an  excess 
over  320  acres,  to  state  how  many  acres  of  such  excess  each 
of  the  purchasers  agreed  to  take,  the  jury  found  that  one  pur- 
chaser agreed  to  take  31/2  acres,  and  another  3%  acres.  Howell 
V.  De7iton  (Tex.  Civ.  App.   '08),  113  S.  W.  314. 

Sec.  880.  Agreement  for  sale  and  proof  of  an  exchange,  not  a 
fatal  variance. 
Where  a  declaration  alleges  an  agreement  on  a  "sale"  of 
real  estate,  proof  of  an  exchange  of  the  property  is  not  a  fatal 
variance,  if  defendant  is  not  misled.  Whitaker  v.  Engle,  111 
Mich.  205,  69  N.  W.  493;  Park  v.  Towne  (S.  D.  Sup.  '08), 
116  N.  W.  1123 ;  Clark  v.  Allen,  125  Cal.  276,  57  P.  985. 

Sec.  880a.    No   material   variance    between    allegations    and 
proof. 

There  is  no  material  variance  between  the  petition,  in  an 
action  by  a  broker  for  commissions,  which  alleges  his  employ- 
ment to  procure  a  purchaser  for  a  specified  commission,  the 
procurement  of  a  purchaser,  and  the  subsequent  sale  of  the 
land  to  him,  and  the  evidence,  which  shows  that  the  owner  and 
the  purchaser  procured  by  the  broker  entered  into  an  enforce- 
able contract  for  the  sale  and  purchase  of  the  land,  and  that 
the  owner  failed  to  perform,  though  the  purchaser  was  ready 
and  willing;  the  word  "sale"  not  being  limited  to  a  transaction 
where  the  legal  title  is  conveyed  to  the  purchaser.  Sanderson 
V.  Wellsford  (Tex.  Civ.  App.  '09),  116  S.  W.  382. 

Sec.  881.    No  variance  where  plaintiff  was  to  be  paid  $60  for 
services  and  proof  of  2  per  cent,  on  $3,000. 

There  is  no  variance  between  the  pleadings  and  proof,  where 
the   petition   avers   that   plaintiff   was  to   receive   $60   for  his 


524  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

services,  if  he  assisted  in  selling  certain  realty,  and  the  proof 
of  plaintiff  shows  that  he  was  to  receive  two  per  cent,  on  the 
amount  for  which  the  property  should  be  sold  or  exchanged, 
and  that  it  was  sold  for  $3,000.  Rembolz  v.  Betvnett,  86  Mo. 
App.  174. 

Sec.  882.  Claim  for  given  sum  and  proof  of  smaller  no  va- 
riance where  defendant  was  not  misled. 
"Where  plaintiff  claims  he  is  entitled  to  a  given  sum  under  a 
contract,  he  is  entitled  'to  recover,  though  the  proof  shows  that 
he  was  entitled  to  a  smaller  sum,  unless  the  variance  has  mis- 
led defendant.  Nichols  v.  Whitacre,  112  Mo.  App.  692,  87  S. 
W.  594. 

Sec.  883.     On  allegation  of  special  contract,  can  not  recover 
on  implied  agency. 

Under  an  allegation  of  a  special  contract  of  employment  to 
sell  property,  recovery  can  not  be  had  upon  an  agency  implied 
from  an  acceptance  of  the  agent's  services.  Bassford  v.  West, 
124  Mo.  App.  248,  101  S.  W.  610. 

Sec.  884.  Contract  made  in  April,  not  sustained  by  proof  of 
similar  made  in  August. 
Where  the  petition  in  an  action  by  a  broker  for  commis- 
sions sets  forth  a  cause  of  action  based  on  a  contract  of  em- 
ployment entered  into  in  April,  there  can  be  no  recovery  on 
proof  showing  a  contract  made  in  August  following,  contain- 
ing similar  terms,  and  the  court  should  either  direct  a  verdict 
for  defendant,  or  permit  an  amendment  making  the  pleading 
conform  to  the  proof.  Hurst  v.  Williams,  31  Ky,  L.  R,  658, 
102  S.  W.  1176. 

Sec.  884a.    Variance  between  allegations  and  proof. 

Where,  in  an  action  by  a  broker  for  commissions  for  having 
procured  a  purchaser  for  defendant's  land,  the  plaintiff  alleged 
that  he  procured  a  certain  person  as  purchaser,  and  the  evi- 
dence showed  that  such  person  was  acting  as  agent  for  an 
undisclosed  principal,  there  was  a  variance.  Mott  v.  Minor 
(Cal.  App.  '09),  106  P.  244. 


PLEADINGS,  PRACTICE,  ETC.  525 

Sec.  884b.    Variance  between  allegation  and  proof. 

Where,  in  a  suit  for  broker's  commissions  upon  an  express 
contract,  plaintiff  claimed  that  he  was  to  receive  all  of  the 
selling  price  above  $30  per  acre,  and  defendants  denied  any 
contract  for  commissions,  asserting  that  they  employed  plain- 
tiff as  an  attorney  only,  they  could  not  on  the  trial  prove  an 
express  contract  different  from  the  one  sued  on ;  to-wit :  that 
they  were  to  receive  a  net  profit  of  50  per  cent,  on  the  trans- 
action.    Dempster  v.  Cochran,  174  Fed.  587. 

Sec.  885.     Evidence  at  substantial  variance  with  allegations 
inadmissible. 

The  complaint  must  allege  either  performance  or  a  valid 
excuse  for  non-performance,  and  the  proof  must  conform  to 
the  allegations  of  the  petition.  Daly  v.  Russ,  86  Cal.  114,  24 
P.  867 ;  Norman  v.  Reuther,  54  N.  Y.  S.  152,  25  Misc.  161 ;  Yar- 
borough  v.  Cr eager  (Tex.  Civ.  App.  '03),  77  S.  W.  645;  Martin 
V.  Fagan,  88  N.  Y.  S.  472,  95  App.  Div.  154 ;  Hoefling  v.  Ham- 
hleton,  84  Tex.  517,  19  S.  W.  689. 

Sec.  886.    Allegation  that  land  was  conveyed  to  two  and  proof 
of  to  but  one,  not  a  material  variance. 

In  an  action  for  a  broker's  commissions  on  a  sale  of  land, 
where  the  complaint  alleges  that  the  land  was  conveyed  to  two 
persons,  and  the  finding  is  that  it  was  conveyed  to  one  of  these, 
the  variance  is  not  a  material  one.  Clifford  v.  Meyer,  6  Ind. 
App.  633,  34  N.  E.  23. 

Sec.  887.    Variance  in  date  not  material,  where  contract  was 
made  before  the  sale  and  within  the  time. 

In  an  action  to  recover  commissions  under  a  contract  for  the 
sale  of  land,  proof  that  the  contract  was  made  on  the  exact 
date  alleged. is  not  required,  since,  while  it  is  necessary  to  al- 
lege the  date  with  convenient  certainty,  it  is  sufficient  if  shown 
to  have  been  prior  to  the  consummation  of  the  sale  and  within 
the  time  prescribed  by  the  statute  of  limitations,  Dillard  v. 
Olalla  Min.  Co.,  52  Ore.  126,  96  P.  678.  Contra,  Fortran  v. 
Stowers  (Tex.  Civ.  App.  'OP),  113  S.  W.  631. 


526  AMERICAN    law   REAIi   ESTATE   AGENCY. 

Sec.  887a.  Variance  in  the  terms  of  contract  released  agent 
from  liability. 
A  real  estate  agent  who  received  a  part  payment  of  the  pur- 
chase money  on  a  sale,  conditioned  that  the  offer  be  accepted 
by  the  owner  on  the  terms  and  conditions  specified  or  the  money 
be  returned,  is  not  liable  in  an  action  by  the  purchaser  for 
the  money,  if  the  offer  was  accepted  by  the  owner,  and  if,  at 
the  time  of  acceptance,  the  owner  and  purchaser,  by  mutual 
agreement,  vary  the  terms  and  conditions  upon  which  the 
agent  sold.  Fowler  v.  Qtiall,  36  Kan.  507,  13  P.  784.  See  also 
Sec.  293. 


CHAPTER  XV. 

QUESTIONS  TO  BE  DETERMINED  BY  THE  JURY. 

Sec.  888.    In  an  action  for  commissions,  whether  parties  en- 
tered into  a  contract,  a  question  for  the  jury. 

In  an  action  to  recover  commissions  for  purchasing  prop- 
erty for  defendant,  whether  a  contract  such  as  stated  in  the 
complaint  was  entered  into,  was  a  question  for  the  jury,  and 
it  was  error  to  direct  a  verdict  for  plaintiff.  Anderson  v, 
Johnson  (N.  D.  Sup.  '07),  112  N.  W.  139;  Horwitz  v.  Pepper, 
128  Mich.  688,  87  N.  W.  1 034 ;  Shultz  v.  Eherle,  124  Wis.  594, 
102  N.  W.  1055;  Ballentine  v.  Mercer,  130  Mo.  App.  605,  109 
S.  W.  1037;  Mead  v.  Arnold,  131  Uo.  App.  214,  110  S.  W.  656. 

Sec.  889.    If  party  adduces  evidence  to  justify  a  verdict,  error 
to  take  from  the  jury. 

It  is  the  peculiar  province  of  the  jury  to  pass  upon  questions 
of  fact,  and  the  issues  of  fact,  as  well  as  of  law  submitted  to 
the  court  for  determination.  A  jury  not  having  been  waived, 
it  was  error  for  the  court  to  undertake  to  decide  upon  the 
weight  of  the  evidence,  and  withdraw  from  the  consideration 
of  the  jury,  a  phase  of  the  controversy  upon  which  plaintiff 
was  entitled  to  have  them  pass.  Morey  v.  Harvey,  18  Colo.  40, 
31  P.  719;  Blackivell  v.  Greenhaum,  50  111.  App.  143;  Byan  v. 
Page,  123  Iowa,  246,  98  N.  W.  768 ;  Tracey  Ld.  Co.  v.  Polk  Ld. 
&  Ln.  Co.,  131  Iowa,  40,  107  N.  W.  1029;  West  v.  Prewitt,  19 
Ky.  li.  R.  1480,  43  S.  W.  467;  Wright  v.  Young,  176  Mass. 
100,  57  N.  E.  212;  Bogers  v.  Evan.  Bap.  Ben.,  etc.,  So.,  168 
:Mass.  592,  47  N.  E.  434 ;  West  v.  Bemw.e,  128  Mich.  11,  87  N. 
W.  95;  Marx  v.  Otto,  117  Mich.  510,  76  N.  W.  7;  Crevier  v. 
Stephen,  40  Minn.  288,  41  N.  W.  1039;  Finch  v.  Guardian  Tr. 
Co.,  92  Mo.  App.  263;  Langstreth  v.  Korh,  64  N.  J.  L.  112, 
44  A.  934;  Grade  v.  Stevens,  171  N.  Y.  658,  63  N.  E.  1117; 
Condict  V.  Cowdrey,  123  N.  Y.  463,  25  N.  E.  946 ;  Beddin  v. 

527 


528  AMERICAN    LAW  REAL   ESTATE   AGENCY. 

Dam,  64  N.  Y.  S.  611,  51  App.  Div.  636;  Thornal  v.  Pitts, 
36  N.  Y.  Super.  Ct.  379;  Meeslahn  v.  Englehard,  2C  N. 
Y.  S.  900,  1  Arise.  412;  Meyer  v.  Strauss,  58  N.  Y.  S.  904,  42 
A.pp.  Div.  613;  Ei7igold  v.  Rhode,  132  Pa.  St.  189,  18  A.  1118; 
Clendenin  v.  Pancoast,  75  Pa.  St.  213;  McCaffery  v.  Page,  20 
Pa.  Super.  Ct.  400;  Boeder  v.  Butler,  19  Pa.  Super.  Ct.  604; 
Blair  v.  Slosson,  27  Tex.  Civ.  App.  403,  66  S.  W.  112;  Center 
V.  Conglomerate  Min.  Co.,  23  Utah,  165,  64  P.  362;  Dunsmier 
V.  Loivenhurg,  31  Canada  Supreme  Ct.  334;  Lamson  v.  Main, 
43  N.  Y.  Super.  Ct.  24. 

Sec.  890.  Question  of  ability,  readiness  and  willingness  of 
customer  to  perform  the  contract  is  for  the  jury. 
Whether  the  broker's  customer  was  able,  ready  and  willing 
to  enter  into  the  transaction  is  for  the  jury  to  determine.  Mc- 
Dermott  v.  MaJwney,  119  Iowa,  470,  93  N.  W.  499;  Hamill  v. 
Basenhover,  110  Iowa,  369,  81  N.  W.  600;  Finch  v.  Guardian 
Tr.  Co.,  92  Mo.  App.  263 ;  Middleton  v.  Thompson,  163  Pa.  St. 
112,  29  A.  796;  Smye  v.  Groeslech  (Tex.  Civ.  App.  '02),  73 
S.  "W.  972.  And  whether  the  failure  to  mention  the  name  of 
the  purchaser  to  the  principal  was  a  fraudulent  concealment. 
Newhall  v.  Pierce,  115  Mass.  457;  Geery  v.  Pollock,  44  N.  Y. 
S.  673,  16  App.  Div.  321;  Ames  v.  McNally,  26  N.  Y.  S.  71,  6 
Misc.  93 ;  Page  v.  Yoorhies,  16  N.  Y.  S.  101 ;  Vandevort  v.  Wheel- 
ing Steel,  etc.,  Co.,  194  Pa.  St.  118,  45  A.  86;  McCaffery  v. 
Page,  20  Pa.  Super.  Ct.  400. 

Sec.  891.  Whether  defendant  prevented  sale,  exchange,  lease 
or  loan. 

Whether  the  defendant  prevented  a  sale,  an  exchange,  a  lease 
or  a  loan  is  for  the  jury  to  determine.  McDermott  v.  Mahoney, 
119  Iowa,  470,  93  N.  W.  499 ;  Wright  v.  Young,  176  Mass.  100, 
57  N.  E.  212;  Green  v.  Wright,  36  Mo.  App.  298;  Hancock  v. 
Stacey  (Tex.  Civ.  App.  '09),  116  S.  W.  177. 

Sec.  891a.  Whether  under  the  contract  the  broker's  commis- 
sions were  not  to  become  due  until  a  lease  had  been  signed 
by  the  parties  was  a  question  for  the  jury. 

In  an  action  by  a  broker  for  commissions,  evidence  exam- 
ined and  held  that,  whether  there  was  a  contract  between  the 


PLEADINGS,    1'KAC;TICE,   ETC.  529 

parties  by  which  plaintiff's  commission  was  not  to  become  due 
until  there  had  been  a  lease  signed  by  the  parties  was  a  ques- 
tion for  the  ^xiry.  Benedict  v.  Pincus,  95  N.  Y.  S.  1042,  109 
App.  Div.  20.  Also,'  as  to  whether  commissions  were  to  be  paid 
before  title  passed.  Dekremen  v.  Clothier,  96  N.  Y.  S.  525,  109 
App.  Div.  481. 

Sec.  892.    Whether  the  services  were  rendered  with  expecta- 
tion of  reward. 

Whether  the  services  performed  by  plaintiff  in  finding  a  pur- 
chaser were  rendered  with  the  mutual  understanding  that  they 
were  to  be  paid  for,  should  have  been  submitted  by  the  jury. 
Armstrong  v.  Ft.  Edicard,  159  N.  Y.  315,  53  N.  E.  1116 ;  Darling 
v.  Howe,  14  N.  Y.  S.  561,  60  Hun,  578 ;  Bullock  v.  Menninger 
(Ky.  Ct.  App.  10),  125  S.  W.  256. 

Sec.  893.     Whether  employed  as  a  broker  and  authorized  to 
do  the  acts  claimed. 

It  is  for  the  jury  to  determine  whether  plaintiff  was  em- 
ployed as  a  broker  and  authorized  to  perform  the  acts  for 
which  he  claims  compensation;  in  case  of  a  conflict  of  testi- 
mony it  is  error  for  the  court  to  direct  a  verdict.  Stephens 
V.  Bailey,  149  Ala.  256;  42  S.  740;  Byan  v.  Page,  123  Iowa, 
246,  98  N.  W.  768;  Monk  v.  Parker,  180  Mass.  246,  63  N.  E. 
793;  Codd  V.  Seitz,  94  INIich.  191,  53  N.  W.  1057;  Merriam  v. 
Johnson,  86  Minn.  61,  90  N.  W.  116;  Cody  v.  Dempsey,  83  N. 
Y.  S.  899,  86  App.  Div.  335 ;  Reddin  v.  Dam,  64  N.  Y.  S.  611, 
51  App.  Div.  636;  Moore  v.  Boehm,  26  N.  Y.  S.  67,  6  Misc.  38; 
Tieck  V.  McKenna,  101  N.  Y.  S.  317,  115  App.  Div.  701;  Black 
V.  Snook,  204  Pa.  St.  119,  53  A.  648;  Dixon  v.  DanJ),  17  Pa. 
Super.  Ct.  168 ;  Center  v.  Conglomerate  Min.  Co.,  23  Utah,  165, 
64  P.  362. 

Sec.  894.    The  question  of  the  authority  of  principal's  agent 
to  employ  a  broker. 

The  authority  of  the  principal's  agent,  in  this  ease  his  father, 
to  employ  a  broker  is  a  question  of  fact  that  should  have  b(?en 
submitted  to  the  jury.  Phillips  v.  Hazcn,  122  Iowa,  475,  98  N. 
W.  305;  Codd  V.  Seitz,  94  ^lich.  191,  53  N.  W.  1057;  Groscup 
V.  Downey,  105  Md.  273,  65  A.  930. 


530  AMERICAN    I;AW   REAL   ESTATE   AGENCY. 

Sec.  895.    Question  of  ratification. 

Questions  involving  ratification  should  be  submitted  to  the 
jury.    Center  v.  Conglomerate  Min.  Co.,  23  Utah,  165,  64  P.  362. 

Sec.  896.  Whether  the  broker  was  the  procuring  cause  of  the 
transaction. 
Whether  the  broker  was  in  fact  the  procuring  cause  of  the 
transaction  entered  into  by  the  principal  with  the  customer 
is  properly  left  to  the  jury  to  determine.  Smith  v,  Anderson, 
2.  Ida.  (Harb.),  537,  21  P.  412;  Colvin  &  Rinard  v.  Lyo7is,  96 
P.  572,  15  Idaho,  180 ;  Rounds  v.  Alle,  116  Iowa,  345,  89  N.  W. 
1098 ;  Reid  v.  McNcrmj,  128  Iowa,  350,  103  N.  W.  1001 ;  Roth- 
enherger  v.  Schoningerg,  30  Ky.  L.  R.  1018,  99  S.  W.  1150; 
Hosmer  v.  Fxdler,  168  Mass.  274,  47  N.  E.  94 ;  Kinder  v.  Pope, 
106  Mo.  App.  506,  80  S.  W.  315;  Armstrong  v.  Ft.  Edivard, 
159  N.  Y.  315,  53  N.  E.  1116;  Smith  v.  McGovern,  65  N.  Y.  574; 
Palmer  v.  Durand,  70  N.  Y.  S.  1105,  62  App.  Div.  467 ;  Reddin 
V.  Dam,  64  N.  Y.  S.  611,  51  App.  Div.  636;  Condict  v.  Cowdrcy, 
19  N.  Y.  S.  699,  61  N.  Y.  Super.  Ct.  315;  Smith  v.  Smith,  1 
Sweeney  (N.  Y.),  552:  Bickert  v.  Hoffman,  19  N.  Y.  S.  472; 
Bonwell  v.  Howes,  1  N.  Y.  S.  435;  Shipman  v.  Freeh,  1  N.  Y. 
S.  67 ;  Burchfield  v.  Griffith,  10  Pa.  Super.  Ct.  618 ;  Van  Tohel 
V.  Stetson,  etc.,  Mill  Co.,  32  Wash.  683,  73  P.  788;  Willey  v. 
Rutherford,  108  Wis.  35,  84  N.  W.  14;  Burden  v.  Briquilet,  125 
Wis.  341,  104  N.  W.  83;  Goldsmith  v.  Coxe,  80  S.  C.  341,  61 
S.  E.  555;  Murray  v.  Curry,  7  C.  &  P.  (Eng.)  584,  32  Exch.  771; 
Jemoney  v.  Tallman,  40  N.  Y.  Super.  Ct.  436 ;  McLaughlin  v. 
Campbell  (N.  J.  Err.  &  App.  '09),  74  A.  530. 

Sec.  897.    Whether  the  contract  given  to  the  broker  was  ex- 
clusive. 

In  an  action  to  recover  commissions  for  a  sale  of  real  es- 
tate, plaintiff  alleged  a  contract  whereby  defendant  agreed  to 
pay  him  a  certain  sum  if  he  would  find  a  purchaser  for  his 
property,  and  that  he  did  so;  defendant  alleged  that  plaintiff 
had  not  the  exclusive  right  to  dispose  of  the  property  under 
the  agreement,  and  that  defendant  had  sold  it  himself.  Held, 
to  present  a  question  of  fact  for  the  jury.  Black  v.  Snook,  204 
Pa.  St.  119,  53  A.  648 ;  Rothenburger  v.  Schoningerg,  30  Ky.  L. 


PLEADINGS,  PRACTICE,  ETC.  531 

R.  1018,  99  S.  W.  1150.  Where  the  authority  is  conferred  on 
the  agent  by  a  written  instrument  its  construction  is  for  the 
court.    Grosscup  v.  Downey,  105  Md.  273,  65  A.  930. 

Sec.  898.  Proper  to  take  from  jury  when  broker  sold  for  less 
than  instructions  authorized. 
A  broker  hired  to  sell  property  at  a  certain  price,  can  not 
recover  commissions  for  effecting  a  sale  at  a  lower  price,  and 
the  appellate  court  held  that  the  case  was  properly  taken  from 
the  jury.  Williams  v.  McGraw,  52  Mich.  480,  18  N.  W.  227. 
See  also  Sec.  408. 

Sec.   899.    Whether   agent  procuring  mortgage   with  wrong 
description  was  guilty  of  negligence. 

In  an  action  by  a  principal  against  her  agent  for  negligence 
in  procuring  a  mortgage  to  be  executed  in  her  favor  in  which 
the  land  was  wrongly  described.  Held,  that  it  should  be  left 
to  the  jury  to  say  whether  the  plaintiff  was  guilty  of  contribu- 
tory negligence  in  not  discovering  the  mistake,  which  was  pat- 
ent upon  the  face  of  the  mortgage.  Munford  v.  Miller,  7  111. 
App.  62.     See  also  Sec.  913. 

Sec.  900.  Where  the  rate  of  compensation  is  not  fixed  a  ques- 
tion for  the  jury. 
"Where  an  agent  has  been  employed  to  sell  land  at  no  fixed 
rate  of  compensation,  the  jury  are  to  fix  the  value  of  his  ser- 
vices in  the  premises  from  the  work  done ;  and  in  fixing  the 
amount,  the  rate  usually  paid  professional  land  brokers  for 
such  services  may  be  taken  into  consideration,  Ruckman  v. 
Bergholz,  38  N.  J.  L.  531 ;  Burdon  v.  Briquilet,  125  Wis.  341, 
104  N.  W.  83. 

Sec.  901.    Where  the  claim  of  plaintiff  to  commissions  is  con- 
tested, has  a  right  to  go  to  the  jury. 

In  an  action  to  recover  $100  agreed  to  be  paid  for  procur- 
ing a  purchaser  of  certain  property,  plaintiff  testified  that  de- 
fendant, to  whom  the  owner  of  the  property  owed  money, 
wished  the  property  sold  so  as  to  get  his  money,  and  agreed 
to  pay  plaintiff  $100  if  he  found  a  purchaser,  no  price  being 


532  AMERICAN    LAW   REAL    ESTATE    AGENCY. 

named;  that  plaintiff  brought  one  L.  to  look  at  the  property, 
but  he  refused  to  buy,  when  defendant  asked  $5,000  for  it ; 
other  parties  afterward  procured  L.  to  purchase  at  $2,700; 
plaintiff  claimed  that  the  sale  was  indirectly  due  to  his  efforts, 
and  that  the  defendant  had  sold  through  other  persons  to  keep 
from  paying  plaintiff;  defendant  testified  that  he  had  nothing 
to  do  with  the  sale  after  L.  had  refused  to  purchase  at  $5,000, 
and  that  he  agreed  to  pay  plaintiff  if  he  procured  a  purchaser 
at  that  price;  the  persons  who  finally  made  the  sale  testified 
that  the  plaintiff  had  nothing  to  do  with  the  sale.  Held,  that 
plaintiff  had  a  right  to  go  to  the  jury  on  the  evidence.  Kelso 
V.  Woodruff,  88  Mich.  290,  50  N.  W.  249 ;  Monsseau  v.  Dorsett, 
80  Ga.  566,  5  S.  E.  780 ;  Ferguson  v.  Glaspie,  38  Minn.  418,  38 
N.  W.  352;  CooUcan  v.  Mil.  d-"St.  St.  M.  Ins.  Co.,  79  Wis.  471, 
48  N.  W.  717;  Dickinson  v.  Hakn  (S.  D.  Sup.  '09),  119  N.  W. 
1034;  MiitchnicJc  v.  Friedman,  120  N.  Y.  S.  375. 

Sec.  902.  Where  agent  procured  purchaser  and  two-eighth 
interest  iinpurchasable,  whether  entitled  to  full  conunis- 
sions. 
A  real  estate  broker  had  found  a  purchaser  at  the  price 
stipulated  for  land  purported  to  be  owned  by  his  principal, 
and  was  then  referred  by  him  to  other  tenants  in  common, 
with  whom  he  subsequently  made  terms  at  a  higher  price,  ex- 
cept two-eighths  interest  owned  by  them,  but  did  not  disclose 
this  to  his  first  principal  Held,  there  was  no  duty  owing  by 
the  agent  as  to  the  outstanding  two-eighths,  and  it  was  not  in- 
cumbent upon  him  to  inform  his  principal,  and  in  a  suit  by 
the  broker  for  his  commissions  against  his  original  principal, 
he  was  entitled  to  go  to  the  jury  upon  the  question  of  fulfill- 
ment of  the  terms  of  the  original  contract.  Black  v.  Barr,  14 
Pa.  Super.  Ct.  98,  651. 

Sec.  903.     Question  of  allowing  interest  on  claim  for  commis- 
sions is  for  the  jury. 

The  matter  of  allowing  interest  on  a  claim  for  commissions 
for  producing  a  purchaser  should  be  left  to  the  discretion  of 
the  jury.  Schamberg  v.  Auxier,  101  Ky.  292,  19  Ky.  L.  R.  548, 
40  S.  W.  911. 


PLEADINGS,    I'll ACTICE,    ETC.  533 

Sec.  904.  Evidence  of  continuing  offer,  acceptance  and  per- 
formance by  plaintiff. 
In  an  action  for  services  in  selling  an  estate  for  the  defend- 
ant, it  appeared  that  the  defendant  told  the  plaintiff  that  he 
would  give  him  a  certain  sum  if  he  would  obtain  a  purchaser, 
that  the  plaintiff,  who  was  not  a  broker,  neither  did  nor  said 
anything  at  the  time  to  show  that  he  accepted  the  offer,  but 
within  a  few  days  told  J.  S.  that  the  defendant  wanted  to 
sell,  and  took  him  to  see  defendant,  but  did  not  find  the  de- 
fendant; and  that  afterwards  J.  S.  bought  the  estate,  but  the 
defendant  did  not  know  till  after  the  sale  that  the  plaintiff 
had  done  anything  to  aid  it.  Held,  that  there  was  evidence 
for  the  jury  of  a  continuing  offer,  of  an  acceptance  and  of  a 
performance  by  the  plaintiff  of  the  contract  thus  formed.  Bom- 
stein  V.  Lane,  104  Mass.  214. 

Sec.  905.    Whether  the  attorney  in  fact  executed  and  delivered 
a  certain  paper  to  the  broker. 

In  an  action  by  a  broker  for  tlie  recovery  of  commissions 
earned  in  procuring  an  exchange  of  real  property,  evidence 
held  to  require  submission  to  the  jury  of  the  question  whether 
the  attorney  in  fact  of  the  owner  executed  a  certain  paper 
and  delivered  it  to  the  broker  with  tlie  intention  of  authoriz- 
ing him  to  negotiate  the  transaction.  Cody  v.  Dempsey,  83  N. 
Y.  S.  899,  8':;  App.  Div.  335. 

Sec.  906.  In  conflicting  testimony  as  to  a  contract,  the  mean- 
ing thereof  for  the  jury. 
In  an  action  to  recover  a  broker's  commissions  for  a  sale 
of  real  estate,  the  contract  provided  that  on  a  sale  the  broker 
should  be  entitled  to  a  commission  of  $150  "if  title  is  taken," 
there  was  evidence  that  the  broker  procured  a  contract  for  the 
purchase  of  the  property  at  a  price  satisfactory  to  defend- 
ants; the  purchaser  did  not  take  title,  and  the  defendant  urged 
the  fact  as  a  defense ;  the  broker  testified  that  at  the  time  of 
his  employment  the  defendant  had  not  then  acquired  title,  and 
that  the  clause  "if  title  is  taken"  referred  to  the  conveyance 
to  the  defendant  by  the  prior  owners.  Held,  that  the  question 
of  the  meaning  of  the   contract  was   for  the  jury.     Thill  v. 


534  AMERICVN    LAW   REAL   ESTATE   AGENCY. 

Schonzeii,  93  N.  Y.  S.  383,  104  App.  Div.  151 ;  Condict  v.  Coiv- 
drey,  123  N.  Y.  463,  25  N.  E.  946 ;  Lechnyr  v.  Germansky,  113 
N.  Y.  S.  969 ;  Weaver  v.  Richards,  156  Mich.  320.    See  Sec.  1131. 

Sec.  906a.  Question  as  to  modification  of  contract  for  the 
jury. 
In  an  action  to  recover  commissions  for  selling  real  estate, 
where  it  appears  that  the  commissions  were  to  be  paid  as  cer- 
tain installments  of  the  purchase  money  were  received,  the  case 
is  for  the  jury,  where  the  evidence,  although  contradictory,  tends 
to  show  that  after  certain  installments  had  been  paid,  the  origi- 
nal contract  between  the  seller  and  the  purchaser  had  not  been 
abrogated,  but  had  been  modified,  and  in  the  modified  form 
had  been  executed.     Papagian  y.  Scott,  37  Pa.  Super.  Ct.  560. 

Sec.  907.    Whether  broker  did  not  act  merely  as  sub-agent. 

In  an  action  by  a  real  estate  broker  for  his  commissions  in 
securing  a  purchaser,  evidence  examined  and  held  to  require 
submission  to  the  jury  of  the  question  whether  the  broker  did 
not  act  merely  as  sub-agent  of  other  brokers.  J.  B.  Watkin's 
Ld.  Co.  V.  Thetford  (Tex.  Civ.  App.  '06^,  96  S.  W.  72. 

Sec.  908.  Error  to  direct  verdict  for  defendant  because  hus- 
band did  not  join,  should  have  been  left  to  the  jury. 
In  an  action  by  a  real  estate  broker  to  recover  compensa- 
tion for  furnishing  a  purchaser  for  defendant's  land,  where  a 
part  of  the  consideration  to  be  paid  was  an  exchange  of  home- 
stead property  owned  by  the  customer,  it  was  error  to  direct 
a  verdict  for  defendant,  on  the  ground  that  the  contract  could 
not  be  specifically  enforced,  for  the  reason  that  the  husband 
did  not  join  in  the  contract  with  the  wife,  who  owned  the  land, 
nor  in  the  offer  to  convey,  where  there  was  evidence  tending 
to  show  that  they  both  executed  the  contract  as  well  as  the 
deed  offered  in  performance,  and  that  they  were  ready  and  will- 
ing to  perform,  since  such  question  should  have  been  submit- 
ted to  the  jury.  Jlamill  v.  Baumhover,  110  Iowa,  369,  81  N.  W. 
600. 

Sec.  909.    Which  of  rival  brokers  effected  a  loan. 

Plaintiff,  a  broker,  called  on  one  of  a  committee  of  two  ap- 
pointed by  a  corporation  to  secure  a  loan  for  it,  and  stated 


PLEADESTGS,   PRACTICE,   ETC.  535 

that  the  loan  could  be  obtained  from  a  certain  company,  and 
that  he  had  spoken  to  the  company,  and  would  expect  a  com- 
mission if  defendant  made  the  loan;  the  committee  said  that 
if  another  broker  did  not  succeed  by  the  next  day,  they  would 
be  glad  to  have  plaintiff  make  the  commission ;  on  the  next  day, 
the  committeeman  told  plaintiff  that  the  other  broker  was  un- 
able to  procure  the  loan,  and  plaintiff  again  stated  the  com- 
pany of  which  he  had  spoken;  the  committeeman  stated  that 
he  wished  information  as  to  the  matter  of  taxes,  and  plaintiff 
introduced  to  him  a  person  who  gave  the  desired  information; 
said  committeeman  was  in  constant  communication  with  his  col- 
league, and  testified  that  he  communicated  to  him  all  mat- 
ters of  interest  in  regard  to  the  loan ;  the  loan  w^as  finally  ob- 
tained from  the  company  suggested  by  plaintiff.  Held,  that 
plaintiff's  right  to  a  commission  was  a  question  for  the  jury. 
Rogers  v.  Evan.  Bap.  Ben.  &  Mis.  So.,  168  Mass.  592,  47  N.  E. 
434;  Cadigan  v.  CraUree,  192  Mass.  233,  78  N.  E.  412. 

Sec.  910.    Error  to  submit  to  jury  where  broker  carried  on 
no  negotiations  with  the  purchaser. 

Where,  in  an  action  by  the  assignee  of  a  broker  to  recover 
commissions  for  a  sale  of  real  estate,  plaintiff's  assignor  tes- 
tified that  he  was  acting  for  the  purchaser  when  he  approached 
defendant,  and  that,  on  the  failure  of  these  negotiations,  he 
mentioned  other  prospective  purchasers,  but  told  defendant  that 
they  were  his  customers,  and  it  was  shown  that  plaintiff's  as- 
signor carried  on  no  negotiations  with  the  party  who  purchased 
the  property,  and  did  not  meet  the  party  until  a  week  after 
the  sale,  it  was  error  to  submit  the  case  to  the  jury.  Whiteley 
V.  Terry,  82  N.  Y.  S.  89,  83  App.  Div.  197. 

Sec.  911.    Whether  failure  to  consummate  sale  was  the  fault 
of  the  principal. 

In  an  action  by  a  broker  for  his  commissions  for  securing  a 
purchaser,  evidence  examined  and  held  sufficient  to  take  to  the 
jury  the  question  whether  the  failure  of  the  consummation 
of  the  sale  was  owing  to  the  default  of  the  principal.  Seidman 
V.  Ranner,  99  N.  Y.  S.  862,  51  Misc.  10. 


536  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  912.    Whether  the  sub-agent  concealed  his  relation  from 
the  owner. 

In  an  action  by  a  real  estate  agent  for  commissions,  the 
owner  testified  that  wlien  the  agent's  sub-agent  introduced  a 
purchaser,  the  latter  stated  he  wished  to  deal  direct  with  the 
owner,  who  then  stated*  a  less  price  than  fixed  in  the  contract 
of  employment;  the  owner  testified  that  the  sub-agent  and  the 
purchaser  stated  that  they  had  made  no  arrangement  with  the 
agent;  that  the  sub-agent  stated  nothing  about  commissions  to 
the  agent;  and  that  he-  (the  owner)  told  the  purchaser  and 
sub-agent  that,  if  the  agent  had  sold  the  land,  he  would  have 
to  let  it  go;  the  sub-agent  testified  that  he  asked  the  owner 
if  the  latter  would  not  have  trouble  with  the  agent  about  the 
commissions,  to  wiiich  the  owner  replied  that  he  would  not,  as 
he  was  selling  the  farm ;  the  sub-agent  testified  that  he  told 
the  owner  he  did  not  charge  any  commission,  as  he  would  get 
that  from  the  agent ;  the  purchaser  substantiated  the  sub-agent 's 
testimony;  there  M^as  no  evidence  to  show  that  the  owner  knew 
that  the  sub-agent  was  acting  for  the  agent.  Held,  that  the 
question  w^hether  the  sub-agent  concealed  such  fact  from  the 
owner  should  have  been  submitted  to  the  jury.  Mullen  v.  Bower, 
22  Ind.  App.  294,  53  N.  E.  790. 

Sec.  912a.     Whether  the  broker  was  acting  for  opposite  party 
a  question  for  the  jury. 

The  issue  as  to  whether  the  ])roker  was  acting  for  the  op- 
posite party  should  be  submitted  to  the  jury.  Summa  v.  Dere- 
skiawicz  (Conn.  Sup.  '09),  74  A.  906. 

Sec.  913.    Whether  alleged  negligence  of  broker  prevented  a 
sale. 

In  an  action  to  recover  commissions  for  a  sale  of  land,  where 
the  evidence  shows  that  the  intended  purchaser  was  able,  ready 
and  willing  to  perform,  but  defendant  claims  that  plaintiff 
prevented  the  fulfillment  of  the  agreement  by  defendant  within 
the  time  specified  in  the  contract,  the  question  whether  the 
negligence  of  plaintiff  was  the  cause  of  defendant's  failure  to 
perform  is  for  tlie  jury.  Stanff  v.  Bingenhcimer,  94  Minn.  309, 
102  N.  W.  694.    See  also  Sec.  899. 


PLEADINGS,  PRACTICE,  ETC.  537 

Sec.  914.  Whether  broker  knew  of  minor's  interest  which 
caused  failure  of  sale. 
In  a  suit  between  a  broker  and  his  principal  involving  the 
broker's  right  to  a  commission,  whether  the  broker  had  knowl- 
edge of  the  minor's  interest,  which  caused  the  failure  of  the 
sale,  before  he  obtained  a  purchaser.  Held,  a  question  of  fact 
for  the  jury.    O'Neill  v.  Printz,  115  Mo.  App.  215,  91  S.  W.  174. 

Sec.  915.    Whether  broker  acted  in  good  faith  a  question  for 
the  jury. 

In  an  action  by  a  broker  for  commissions  for  selling  defend- 
ant's real  estate.  Held,  that  whether  the  plaintiff ,  was  acting 
in  good  faith  for  defendant's  interest  was  a  question  for  the 
jury.  Roome  v.  Rohinson,  90  N.  Y.  S.  1055,  99  App.  Div.  143; 
Lichtenstein  v.  Mott,  91  N.  Y.  S.  57,  90  App.  Div.  570 ;  Lienwen 
V.  Kline  (Iowa  '09),  120  N.  W.  312. 

Sec.  916.     The  terms  of  the  agreement  with  the  broker  to  pro- 
cure a  loan. 

In  an  action  for  commissions  for  securing  a  loan,  where  the 
evidence  for  plaintiff,  though  contradicted  by  defendant,  tends 
to  show  an  agreement  to  pay  one  per  cent,  on  the  amount  of 
the  loan  to  be  secured  by  plaintiff,  the  question  as  to  such 
agreement  is  for  the  jury.  Carter  v.  3Ioss,  210  Pa.  612,  60  A. 
310. 

Sec.  917.  Where  sale  was  made  to  customer  after  withdrawal 
from  broker,  it  was  error  to  submit  to  jury. 
In  an  action  for  commissions  on  a  sale  of  real  property,  it 
appeared  that  the  purchaser  had  been  informed  that  defend- 
ant's property  was  for  sale,  and  had  written  defendant,  before 
he  met  plaintiff  or  saw  his  advertisement;  that  the  letter  was 
referred  to  plaintiff  M'ith  whom  the  property  was  listed  and  he 
and  the  purchaser  examined  the  property  and  had  some  con- 
versation about  it,  but  agreed  on  nothing;  that  defendant  then 
wrote  plaintiff,  "I  desire  to  withdraw  my  property  from  the 
market  for  a  period ;  I  do  not  know  yet  how  long ; ' '  that  plain- 
tiff had  never  been  authorized  to  sell  the  property  for  less 
than  $5,400  net;  that  the  purchaser  conferred  with  defendant 


538  AMEltlCAN   liAW   REAL   ESTATE   AGENCY. 

afterwards  and  bought  it  for  $5,250.  Held,  that  the  evidence 
did  not  entitle  plaintiff  to  go  to  the  jury.  Malonee  v.  Young, 
119  N.  C.  549,  26  S.  E.  141.  Compare  Hill  v.  Wheeler,  2  Ga. 
App.  349,  58  S.  E.  502. 

Sec.  918.    Where  defendant  promised  plaintiff  additional  com- 
pensation if  found  satisfactory. 

In  a  suit  to  recover  the  reasonable  value  of  services  in  ef- 
fecting an  exchange  of  real  estate,  when  the  defendant  set  up 
that  plaintiff  had  agreed  to  accept  $500  for  his  services,  but 
there  was  evidence  tending  to  show  that  as  an  inducement  for 
such  agreement,  defendant  promised  to  paj'  plaintiff  a  further 
reasonable  commission  if  he  found  the  land  satisfactory,  it  was 
proper  to  submit  such  issue  to  the  jury.  Blair  v.  Slosson,  27 
Tex.  Civ.  App.  403,  66  S.  W.  112. 

Sec.  919.     Whether  time  for  performance  has  been  waived  or 
contract  continued. 

Whether  there  is  evidence  that  the  time  given  a  real  estate 
broker  to  procure  a  purchaser  has  been  waived,  or  the  contract 
has  been  continued,  is  for  the  jury.  Ice  v.  Maxwell,  61  W.  Va. 
9,  55  S.  E.  899;  Arents  v.  Casselman  (Va.  Sup.  '10),  66  S. 
E.  820. 

Sec.  920.    Whether  plaintiff  attempted  to  mislead  defendant. 

In  an  action  to  recover  a  commission  for  services  in  bring- 
ing about  an  exchange  of  land.  Held,  whether  plaintiff  at- 
tempted to  mislead  defendant  upon  a  material  matter  con- 
nected with  the  transaction  was  for  the  jury.  Featherston  v. 
Trone,  82  Ark.  381,  102  S.  W.  196;  Farris  v.  Gilder  (Tex.  Civ. 
App.  '09),  115  S.  W.  645. 

Sec.  920a.  Question  as  to  whether  defendant's  defense  was 
an  afterthought  was  for  the  jury. 
Where,  in  an  action  by  an  assignee  of  a  contract  for  the 
sale  of  land,  made  through  a  broker,  against  the  principal  for 
breach  of  the  contract,  the  defense  was  that  the  contract  had 
been  procured  through  misrepresentations,  the  question  as  to  how 
far  a  delay  of  a  few  weeks  on  defendant's  part  in  retaining 


PLEADINGS,    PRACTICE,   ETC.  539 

the  purchase  money,  and  her  reading  of  the  whole  or  part  only 
of  the  paper  before  signing  it,  tended  to  show  her  defense  to 
be  an  afterthought,  were  for  the  jury.  Kurinsky  v.  Lynch,  201 
Mass.  28,  87  N.  E.  70. 

Sec.  921.    Whether  the  owner  acxed  in  good  faith  in  himself 
selling  the  property. 

On  the  trial  of  an  action  by  real  estate  agents  for  commis- 
sions on  a  sale  of  property,  it  was  error  to  award  a  non-suit, 
where  the  evidence  showed  that  plaintiffs  had  defendant's  prop- 
erty in  their  hands  to  sell  on  specific  terms,  and  that,  pend- 
ing negotiations  between  the  agents  and  their  customers,  they 
were  prevented  from  selling  by  the  act  of  their  principal  in 
taking  the  matter  into  his  own  hands,  and,  without  notice,  sell- 
ing the  property  at  a  lower  price  to  a  customer  procured  by 
their  efforts,  as,  in  such  case,  the  good  faith  of  the  parties,  as 
well  as  whether  the  purchaser  would  have  given  the  stipulated 
price,  are  questions  of  fact  for  the  jury.  Hill  v.  Wheeler,  2 
Ga.  349,  58  S.  E.  502.     Compare    Sec.  917. 

Sec.  922.    Whether  a  limitation  of  time  was  placed  upon  the 
contract. 

An  owner  agreed  to  pay  a  broker  a  specific  commission  on 
his  procuring  a  purchaser  of  real  estate;  at  a  subsequent  in- 
terview on  the  same  day,  when  the  prospective  purchaser  was 
urged  to  conclude  the  purchase  he  insisted  on  having  more 
time ;  the  owner  claiming  that  he  expected  another  purchaser, 
said  he  would  give  the  prospective  purchaser  a  week's  time 
within  which  to  make  up  his  mind.  Held,  that  whether  the 
owner  placed  a  limitation  on  the  contract  with  the  broker  to 
procure  a  purchaser  was  for  the  jury.  Oliver  v.  Katz,  131  Wis. 
409,  111  N.  W.  509. 

Sec.  922a.    Question  as  to  authority  of  agent  is  for  the  jury. 

While  the  question  of  the  authority  of  an  agent  is  for  the 
jury,  when  that  is  disputed,  the  court  should  declare  whether 
a  given  act  is  in  excess  of  the  agent's  authority,  so  that,  in 
an  action  for  commissions  for  purchasing  land  for  defendant, 
the  court  properly  instructed  that  any  payments  made  by  plain- 


540  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

tiff  to  the  sellers,  in  excess  of  the  amount  limited  by  defendant, 
was  without  authority.  3Iahon  v.  Rankin  (Or.  Sup.  '09),  102 
P.  608. 

Sec.  923.  Whether  negotiations  were  abandoned  and  sale  re- 
sulted from  new. 
Evidence  held  suiBcient  to  warrant  submitting  to  the  jury 
the  question  whether  the  negotiations  through  plaintiff  were 
abandoned  ^d  the  sale  ultimately  made  to  the  purchaser  in- 
troduced by  him  was  the  result  of  entirely  new  negotiations. 
Walker  v.  Baldwin,  106  Md.  619,  68  A.  25. 

Sec.  924.     Whether  the  contract  with  broker  was  rescinded. 

In  an  action  to  recover  compensation  under  a  contract  for 
commissions  to  be  paid  plaintiff  for  selling  defendant's  land, 
whether  or  not  the  contract  was  mutually  rescinded  was  for 
the  jury.    Larson  v.  Lorer  (Wash.  Sup.  '08),  94  P.  109. 

Sec.  925.    Whether  defendant  purchased  the  property,  though 
the  deed  was  taken  in  name  of  wife. 

Evidence  that  defendant  purchased  the  land  and  so  was  lia- 
ble for  the  services  of  plaintiff,  to  be  paid  for  if  defendant 
made  the  purchase.  Held,  sufficient  to  go  to  the  jury,  though 
the  contract  of  purchase  and  the  deed  were  taken  in  the  name 
of  defendant's  wife.    Block  v.  Lotve,  99  N.  Y.  S.  951,  51  Misc.  8. 

Sec.  925a.    Evidence  warranted  submission  to  jury  on  ques- 
tion whether  plaintiff  was  a  joint  purchaser. 
In  an  action  by  a  land  broker  for  commissions,  evidence  held 
to  warrant  submission  to  the  jury  whether  plaintiff  was  a  joint 
purchaser.    Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W.  433. 

Sec.  926.    What  is  a  reasonable  time  to  find  a  purchaser. 

A  broker  employed  by  the  owner  to  find  a  purchaser  with- 
out any  specification  of  time,  has  a  reasonable  time,  which  is 
for  the  jury  to  determine.  Hurst  v.  Williams,  31  Ky.  L.  R. 
658,  102  S.  W.  1176 ;  Oliver  v.  Katz,  131  Wis.  409,  111  N.  W. 
509.     See  also  Sees.  611,  612. 


PLEADINGS,  PRACTICE,  ETC.  541 

Sec.  927.  Whether  compensation  for  collecting  rents  covered 
all  of  broker's  services. 
"Where,  in  an  action  for  the  services  of  a  real  estate  agent 
in  procuring  defendant  a  tenant  for  her  hotel,  plaintiff  claimed 
that  his  services  were  reasonably  worth  five  per  cent,  of  tlie  rent 
for  the  term,  evidence  that  defendant  paid  plaintiff  five  per  cent, 
on  the  installments  of  rent  was  siifificient  to  require  the  sub- 
mission to  the  jury  of  the  question  whether  the  same  was  paid 
in  full  compensation  for  plaintiff's  services,  or  a  recognition 
that  plaintiff  was  entitled  to  five  per  cent,  of  all  the  rents  col- 
lected.    Colloty  V.  Schuman,  70  A.  190,  75  N.  J.  L.  97. 

Sec.  928.    Whether  an  owner  dealing  with  a  customer  of  an- 
other broker  became  liable  to  latter. 

Whether  an  owner  employing  several  brokers  to  procure  a 
purchaser  dealt  with  knowledge  of  the  facts  through  one  bro- 
ker with  a  customer  procured  by  another  broker,  and  thereby 
became  liable  to  the  latter  for  the  commissions.  Held,  under 
the  facts,  for  the  jury.  Jennings  v.  Trummer,  52  Oregon.  149, 
96  P.  874. 

Sec.  929.    Whether  the  person  with  whom  the  owner  con- 
tracted was  an  agent  of  the  broker. 

In  an  action  for  commissions  for  procuring  a  purchaser  for 
land  pursuant  to  a  contract  between  the  alleged  agent  of  the 
broker  and  the  owner  of  the  land,  whether  the  person  with 
whom  the  owner  contracted  was  the  agent  of  the  brokers  for 
listing  the  land  in  question.  Held,  under  the  evidence,  a  ques- 
tion for  the  jury.  Ewing  v.  Lunn  (S.  D.  Sup.  '08),  115  N.  W. 
527. 

Sec.  929a.  Improper  to  submit  a  question  of  law  to  the  jury. 
Questions  of  ultimate  fact  only  are  to  be  submitted  to  the 
jury;  the  question  under  consideration  is  double.  Whether  a 
contract  was  entered  into  between  the  plaintiff  and  defendant 
is  a  mixed  question  of  law  and  fact,  and  questions  of  law 
should  never  be  submitted  to  a  jury.  Kilpatrick  v.  McLaughlin^ 
108  111.  App.  463. 


542  AMERICAN   LAW   REAL.   ESTATE   AGENCY. 

Sec.  929b.    Meeting  of  minds  on  contract  of  sale. 

Plaintiff,  after  negotiating  for  sale  to  S.  of  timber  land,  on 
which  defendant  had  an  option,  in  which  S.'s  only  offer  was 
$90,000  for  such  timber  and  that  of  certain  other  adjoining 
tracts,  which  offer  defendant  rejected,  had  a  telephone  talk 
with  defendant,  in  which  he  said  that  he  thought  S.  would  give 
$90,000  for  the  timber  under  option,  and  defendant  told  him 
to  sell  if  S.  would  do  ?o.  Plaintiff  agreed  to  see  S.,  and  report 
to  defendant  by  telephone.  Later  in  the  day  plaintiff  tele- 
graphed defendant:  'SS.  will  give  $90,000  for  timber,  includ- 
ing the  additional  tracts  *  *  *  can't  raise  him  a  penny." 
Defendant  then  telegraphed  plaintiff:  "We  accept  S.'s  offer; 
if  he  declines  to  stand  up,  we  can  do  no  more  business  with 
him."  Held,  that  there  was  evidence  to  go  to  the  jury  that 
defendant's  telegram  was  in  reply  to  plaintiff's  telegram,  and 
not  to  the  telephone  offer,  and  that  therefore  there  was  a  meet- 
ing of  minds  on  the  contract  entitling  plaintiff  to  commissions. 
Watson  V.  Paschall,  83  S.  C.  366,  65  S.  E.  337. 


CHAPTER  XVI. 
INSTRUCTIONS  TO  JURIES. 

Sec.  930.  Instructions  must  not  assume  as  proved,  matters 
which  are  in  issue. 
Instructions  must  not  assume  as  proved,  matters  which  are  in 
issue  in  the  case.  Sivigert  v,  Haivley,  140  111.  186,  29  N.  E. 
883 ;  Cassady  v.  Carrahan,  119  Iowa,  500,  93  N.  W.  386 ;  Bick- 
ardson  v.  Hoyt,  60  Iowa,  68,  14  N.  W.  122;  Benedict  v.  Pell, 
74  N.  Y.  S.  1085,  70  App.  Div.  40 ;  Gerding  v.  Haskin,  21  N.  Y. 
S.  636,  2  Misc.  172;  Graves  v.  Dill,  159  Mass.  74  34  N.  E.  336. 

Sec.  931.    That  defendant  was  liable  where  compensation  for 
services  was  expected. 

It  was  proper  to  instruct  the  jury  that  defendants  were  lia- 
ble for  the  value  of  plaintiff's  services,  if  they  were  of  such 
a  character  and  rendered  under  such  circumstances  as  would 
indicate  to  a  reasonably  intelligent  business  man  that  they  were 
not  performed  gratuitously,  and  that  compensation  was  ex- 
pected, the  instruction  not  assuming  that  plaintiff  had  ren- 
dered all  the  services  for  which  he  asked  compensation.  Miller 
V.  Early,  22  Ky.  L.  R.  825,  58  S.  W.  789.    See  also  Sec.  956a. 

Sec.  932.    Instructions  must  conform  to  the  evidence  in  the 
case. 

Instructions  must  be  in  conformity  with  the  evidence  ad- 
duced in  the  case,  and  instructions  which  impliedly  assume  the 
existence  of  evidence  which  was  not  given  are  erroneous.  Leech 
V.  demons,  14  Colo.  App.  45,  59  P.  230;  Davis  v.  Morgan,  96 
Ga.  518,  23  S.  E.  417 ;  Games  v.  Howard,  180  Mass.  569,  63  N. 
E.  122;  Cadigan  v.  Crabtree,  179  Mass.  474,  61  N.  E.  37,  55  L. 
R.  A.  77;  Hughes  v.  McCnllough,  39  Ore.  372,  65  P.  85;  Taylor 
v.  Cox  (Tex.  Supreme  '93),  16  S.  W.  1063;  Lawson  v.  Thomp- 

543 


y-AJ:  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

son,  10  Utah,  462,  37  P.  732.  Instruction  not  objectionable  as 
submitting  an  issue  not  pleaded.  Baldwin  v.  Smith  (Tex.  Civ. 
App.  '09),  119  S.  W.  111. 

Sec.  933.  Defendant  sued  by  broker  entitled  to  instruction 
which  assumes  he  acted  as  such. 
A  defendant  sued  by  a  broker  for  commissions  is  entitled  to 
an  instruction  which  assumes  plaintiff  to  have  acted  as  broker, 
Avhere  the  declaration  alleged  that  defendant  agreed  to  pay 
plaintiff  a  fixed  sum  if  plaintiff,  as  a  "broker,"  would  secure 
a  sale  to  defendant,  and  plaintiff  testified  that  he  acted  as  a 
broker.    Carpenter  v.  Fisher,  175  Mass.  9,  55  N.  E.  479. 

.^ec.  934.    An  instruction  should  be  given,  on  request,  that 
broker  must  have  been  the  procuring  cause  of  sale. 

An  instruction  that  the  broker  must  have  been  the  procur- 
ing cause  of  the  sale,  in  order  to  entitle  him  to  a  commission, 
should  be  given  on  request,  where  that  point  is  in  issue.  Hinds 
V.  Mclntyre,  89  111.  App.  611 ;  Munson  v.  Carlstrom  (Iowa  Sup. 
'09),  119  N.  W.  606. 

Sec.  934a.  Error  to  charge  that  if  plaintiff  was  procxiring 
cause  of  sale  he  was  entitled  to  recover  commissions. 
A  broker  sued  to  recover  commissions  for  selling  defendant's 
real  estate,  and  testified  that  during  defendant's  absence  he 
exhibited  the  premises  to  one  who,  after  defendant's  return, 
purchased  for  $2,700;  defendant  testified  that  it  was  agreed 
that  the  broker  was  to  receive  no  commission  unless  he  sold 
for  $3,000  during  defendant's  absence.  Held,  that  it  was  error, 
under  the  evidence,  to  charge  that  if  the  plaintiff  was  the  pro- 
curing cause  of  the  sale  he  was  entitled  to  recover.  Largeant 
V.  Storij  (Tex.  Civ.  App.  '01),  61  S.  W.  977. 

Sec.  934b.    Instructions  erroneous  for  omitting  that  plaintiff 
should  be  found  to  be  the  procuring  cause  of  the  sale. 

Real  estate  brokers,  in  their  complaint  for  compensation, 
alleged  that  defendant  gave  them  the  exclusive  agency  to 
sell  a  certain  tract  of  land,  their  compensation  to  be  a  percent- 
age on  the  price  obtained,  and  that  they  procured  a  purchaser 


PLEADINGS,  PRACTICE,  ETC  545 

to  whom  defendant  sold.  Defendant  pleaded  a  general  denial, 
and  especially,  that  plaintiff's'  agency,  if  any,  was  revoked  be- 
fore they  began  to  negotiate  with  the  purchaser.  Held,  that 
an  instruction  that  if  plaintiffs  had  an  exclusive  agency  when 
they  began  to  negotiate  with  the  purchaser,  they  were  entitled 
to  recover,  was  erroneous,  as  not  including  the  necessity  that 
they  should  have  been  the  procuring  cause  of  the  sale,  thereby 
failing  to  conform  to  the  issues  made,  and  even  had  plaintiffs 
alleged  that  defendant,  by  his  sale,  had  prevented  plaintiffs 
from  consummating  their  sale,  the  omission  would  still  have 
been  fatal  to  the  instruction.  Jackson  v.  Stephenson  (Tex.  Civ. 
App.  '08),  114  S.  W.  848;  Eussell  v.  Poor  (Mo.  App.  '08),  119 
S.  W.  433. 

Sec.  935.     Instruction  that  broker  should  bring  buyer  and  sell- 
er together  and  effect  a  purchase. 

"Where  no  other  instruction  defining  a  broker's  duty  is  given, 
it  is  error  to  refuse  an  instruction  that  the  duty  of  a  broker  is 
to  bring  the  buyer  and  seller  together  and  effect  a  purchase 
of  the  property  according  to  the  terms  agreed  on  by  the  seller 
and  the  broker,  and  that  the  latter  is  not  entitled  to  a  com- 
mission for  an  unsuccessful  effort  to  effect  a  sale.  West  v. 
Demme,  128  ]\Iich.  11,  87  N.  W.  95.    Compare  Sec.  511. 

Sec.  936.  Where  instructions  cover  case  generally,  failure  as 
to  particular  detail  not  error. 
If  the  instructions  cover  the  case  generally,  the  failure  to 
instruct  concerning  particular  details  is  not  error,  in  the  ab- 
sence of  a  request  to  specifically  charge  on  that  point.  Bickart 
V.  Hoffman,  19  N.  Y.  S.  472 ;  Keyser  v.  ReiUy,  191  Pa.  St.  271, 
43  A.  317,  4-*  Weekly  Not.  Cas.  240. 

Sec.  937.  Court  not  bound  to  use  the  identical  language,  if 
substantially  the  same  it  is  sufficient. 
The  court  is  not  required  to  use  the  same  language  in  which 
the  charge  offered  is  expressed;  it  is  sufficient  if  the  instruction 
given  is  essentially  similar  to  that  requested.  Walker  v.  Rogers, 
24  Md.  237. 


546  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  938.  Employing  the  word  "furnished"  instead  of  "pro- 
cured" not  a  departure. 
"Where  defendant  agreed  to  pay  commissions  for  sales  of  land 
to  customers  "procured"  by  plaintiff,  an  instruction  that  de- 
fendants were  liable  if  plaintiffs  "furnished"  customers,  is  not 
a  departure  from  the  issues  made.  Boyd  v.  Watson,  101  lowai 
214,  70  N.  W.  120. 

Sec.  939.    Where  evidence  on  given  fact  is  undisputed,  the 
court  should  so  instruct. 

"Wliere  the  evidence  on  a  given  fact  is  undisputed  the  court 
should  so  instruct  the  jury,  O'CuUahan  v.  Boeing,  72  Mich. 
669,  40  N.  W.  843. 

Sec.  940.    Instructions  are  to  be  considered  as  a  whole,  and 
unimportant  defects  are  not  fatal. 

Instructions  are  to  be  considered  as  a  ^vhole,  and  if  they  are 
correct  and  sufficient,  defects  in  unimportant  particulars  are 
not  necessarily  fatal.  Blalcc  v.  Stump,  73  Md.  160,  20  A.  788, 
10  L.  R.  A.  103;  French  v.  McKaij,  181  Mass.  485,  63  N.  E. 
1068;  Walton  v.  Cheesebrough,  167  N.  Y.  606,  60  N.  E.  1121; 
Bickart  v.  Hoffman,  19  N.  Y.  S.  472;  Wilson  v.  Niiber  (Tex. 
Civ.  App.  '02),  68  S.  W.  800. 

Sec.  941.    Instruction  proper  as  to  burden  of  proving  a  par- 
ticular fact  in  issue. 

It  is  proper  to  instruct  as  to  who  bears  the  burden  of  proof  and 
an  instruction  that  conduct  which  imputes  bad  faith  upon  the 
part  of  an  agent  to  sell  real  estate  must  be  shown  by  the  party 
claiming  it,  is  proper.  Buchingham  v.  Harris,  10  Colo.  455, 15  P. 
817 ;  Harrison  v.  Pasterska,  97  Iowa,  166,  66  N.  W.  93. 

Sec.  942.    Instruction  erroneous  that  burden  is  on  party  to 
prove  a  fact  not  denied 

In  charging  the  jury  it  is  error  to  place  the  burden  on  a 
party  to  prove  facts  which  are  not  denied.  Anderson  v.  Brad- 
ford, 102  Mo.  App.  433,  76  S.  W.  726. 


PLEADINGS,  PRACTICE,  ETC.  547 

Sec.  943.    Instruction  properly  refused,  as  too  broad. 

Where  plaintiff  averred  that  he  was  to  have  all  proceeds  of 
sales  over  the  net  price  and  defendant  denied  this,  and  counter- 
claimed  that  plaintiff  agreed  to  sell  the  lots  for  one  dollar  per 
front  foot;  that  plaintiff  had  paid  himself  all  he  had  earned 
out  of  the  proceeds  collected  and  owed  a  certain  balance  of 
such  proceeds  to  defendant.  Held,  that  a  charge  that  plaintiff 
had  the  burden  of  showing  that  he  had  agreed  for  larger  pay 
than  one  dollar  per  front  foot  or  was  entitled  to  any  excess  was 
too  broad.     Glover  v.  Henderson,  120  Mo.  367,  25  S.  W.  175. 

Sec.  944.  Error  to  leave  compliance  with  contract  to  jury» 
that  being  a  question  of  law. 
In  an  action  by  a  broker  to  recover  commissions  for  a  sale 
of  land,  an  instruction  leaving  it  to  the  jury  to  determine 
whether  the  plaintiff  had  complied  with  his  contract  so  as 
to  entitle  him  to  recover  commissions  was  error,  that  being  a 
question  of  law  for  the  court,  the  contract  being  in  writing. 
Goodson  V.  Embleton,  106  Mo.  App.  77,  80  S.  W.  22. 

Sec.  945.  Error  to  instruct  that  broker  was  entitled  to  com- 
missions on  finding  purchaser,  when  principal's  approval 
was  necessary. 

"Where  a  contract  of  sale  was  to  be  approved  by  the  owner, 
an  mstruction  that  plaintiff  Avas  entitled  to  commissions  if  lie 
foimd  a  purchaser,  though  defendant  refused  to  carry  out  the 
trade,  was  erroneous.    Goitt,  v.  Hess,  102  Iowa,  140,  71  N.  W.  218. 

Sec.  946.  Instruction  based  upon  wrong  hypothesis  is  errone- 
ous. 

In  an  action  by  a  broker  for  commissions  lost,  the  plaintiff 
alleged  that  defendant  gave  plaintiff  the  exclusive  right  to 
sell  the  property  for  .$3,000,  defendant  reserving  only  the  right 
to  sell  the  property  himself  for  not  less  than  that  sum ;  that 
plaintiff  procured  a  purchaser,  who  was  ready  and  able  to 
purchase  for  that  sum,  but  that  defendant  previously  sold  the 
property  for  $2,500;  defendant  admitted  the  contract,  except 
that  he  bound  himself  not  to  sell  for  less  than  $3,000,  which  he 
denied,  and  admitted  that  he  sold  the  land  as  alleged.     Held, 


548  AMERICAN   LAW   REAL   ESTATE    AGENCY. 

that  an  instruction  that  if  there  was  a  contract  between  the 
parties  by  which  plaintiff  procured  a  purchaser,  "defendant 
not  having  sold  the  land,"  then  plaintiff  would  be  entitled  to 
recover,  was  erroneous,  as  based  on  the  hypothesis  that  defend- 
ant had  not  sold  the  land,  which  was  not  in  issue,  defendant 
having  admitted  that  he  sold  the  land;  the  instruction  thereby 
practically  amounted  to  directing  a  verdict  for  the  defendant. 
Hughes  v.  McCiiUough,  39  Ore.  372,  H5  P.  85 ;  Will  v.  Schwartz 
(Tex.  Civ.  App.  '09),  120  S.  W.  1039. 

Sec.  947.     Instruction  held  erroneous  that  placed  undue  stress 
upon  payment  as  indicating  the  principal. 

On  the  question  as  to  whether  W.  acted  as  agent  for  plain- 
tiff or  defendant,  a  charge  that,  in  this  connection  the  jury 
should  consider  from  whom  W.  got  his  pay,  whom  he  asked  to 
pay  him,  and  the  fact  that  W.  had  authority  to  sell  the  lot  in 
question,  is  erroneous,  as  giving  undue  prominence  to  the  fact 
as  to  who  paid  for  the  service,  and  allowing  the  jury  to  infer 
previous  authority  to  sell  from  the  fact  of  payment  for  serv 
ices  in  selling.     Williamson  v.  Tyson,  105  Ala.  644,  17  S.  336. 

Sec.  948.     Instruction  that,  if  by  the  terms  of  the  contract, 

the  broker  had  nothing  to  do,  there  was  no  consideration 

for  the  promise,  is  proper. 

In  an  action  for  real  estate  commissions,  defendant  is  entitled 

to  an   instruction  that  if,  by  the  terms  of  the  contract,  it  is 

shown  that  there  was  nothing  for  the  brokers  to  do,  then  the 

promise  to  pay  them   commissions  was   without   consideration 

and  void.     Wolff  v.  Denhoskey,  74  N.  Y.  S.  565,  66  App.  Div. 

428,  36  Misc.  643. 

Sec.  949.    An  instruction  is  objectionable  if  jury  not  directed 
that  belief  must  rest  on  evidence. 

An  instruction  is  objectionable  if  the  jury  are  not  directed 
that  their  belief  must  be  based  on  the  evidence.  Champion 
Iron  Fence  Co.  v.  Bradley,  10  111.  App.  328.    See  also  Sec.  1038. 

Sec.  950.     Instruction  that  plaintiff  was  entitled  to  recover 
$1,000,  erroneous,  where  nothing  to  show  brokers  got  it. 

In  assumpsit  by  a  principal  against  real  estate  brokers  for 
money  had   and  received,  an  instruction   that  if  the  brokers 


PLEADINGS,  PRACTICE,  ETC.  549 

sold  the  principal's  farm  for  $11,000,  but  accounted  to  him 
oilly  for  $10,000,  the  principal  is  entitled  to  receive  $1,000,  is 
erroneous,  where  there  is  evidence  that  the  purchaser,  with 
the  principal's  knowledge,  bought  from  one  who  had  a  prior 
option  on  the  land,  and  there  is  no  evidence  that  the  defend- 
ants ever  received  the  $1,000.  Henshatv  v.  Wilson,  46  111.  App. 
364. 

Sec.  951.     Instruction  properly  refused  which  contemplated 
that  no  leases  were  made  except  through  brokers. 

In  an  action  to  recover  brokerage  for  effecting  a  lease  of 
real  property,  plaintiff  did  not  allege  that  he  had  been  em- 
ployed by  defendant,  but  alleged  that  defendant  accepted  plain- 
tiff's services  with  knowledge  that  they  had  been  rendered. 
Held,  that  it  was  proper  to  refuse  plaintiff's  request  to  charge 
that,  while  the  owner  was  entitled  to  know  that  the  brokers 
had  been  instrumental  in  sending  a  tenant,  yet,  when  he  knows 
that  the  tenant  had  received  information  of  his  intention  to 
let  and  his  price,  the  owner  is  bound  to  inquire  where  the  ten- 
ant got  the  information,  as  such  instruction  presupposes  that 
leases  are  never  made  without  the  intervention  of  brokers,  and 
that  no  information  could  be  received  as  to  what  property  was 
to  be  let,  except  through  brokers.  Tinkham  v.  Knox,  21  N.  Y.  S. 
954,  2  ]Misc.  570. 

Sec.  952.  Instruction  that  plaintiffs  could  not  recover  unless 
they  secured  a  purchaser- at  price  stated,  erroneous. 
In  an  action  by  real  estate  agents  to  recover  commissions,  it 
was  error  to  instruct  the  jury  that,  if  defendant  agreed  to 
give  plaintiffs  a  particular  sum  in  case  they  sold  his  farm  at 
a  specified  price,  plaintiffs  could  not  recover  unless  they  sold 
or  procured  a  purcliaser  for  the  pi'operty  at  the  price  speci- 
fied, defendant  liaving  sold  the  property  to  the  purchaser  pro- 
cured by  plaintiffs,  for  a  price  less  than  that  specified,  and  to 
that  extent  availed  liimself  of  plaintiff's  exertions.  Wetzell 
V.  Wagoner,  41  Mo.  App.  509. 

Sec.  953.    Instruction  that  bringing  parties  together  is  not 
enough,  unless  efticient  cause  of  sale,  is  incorrect. 

In  an  action  ])y  a  broker  to  recover  commissions,  a  charge 
that,  "merely  to  bring  the  buyer  and  seller  together  is  insuffi- 


550  AMERICAN   ia.W  REAL,  ESTATE   AGENCY. 

cient  to  entitle  an  agent  to  a  commission,  unless  it  is  the  effi- 
cient cause  of  the  sale,"  is  incorrect,  and  properly  refused. 
Bowser  v.  Field  (Tex.  Civ.  App.  '91),  17  S.  W.  45. 

Sec.  953a.     Error  in  charge  omitting  that  broker  must  be  the 
procuring  cause  of  the  sale. 

The  error  in  an  instruction  given  at  the  instance  of  plain- 
tiff, in  an  action  for  commissions  for  procuring  a  purchaser 
of  real  estate,  authorizing  a  recovery  on  a  finding  that  plain- 
tiff was  employed  to  procure  a  purchaser,  and  introduced  a 
customer  to  whom  a  sale  was  subsequently  made,  arising  from 
the  failure  to  require  a  finding  that  the  broker  was  the  pro- 
curing cause  of  the  sale,  was  not  cured  by  a  charge,  given  at 
the  instance  of  the  defendant,  that  before  judgment  could  be 
rendered  for  plaintiff,  he  must  show  that  through  his  services 
one  was  induced  to  purchase  the  property,  since  the  two  in- 
structions were  contradictory.  Russell  v.  Poor  (Mo.  App.  '08), 
119  S.  W.  433. 

Sec.  954.  Instruction  to  find  for  broker,  if  found  to  be  the 
procuring  cause  of  sale,  is  correct. 
An  instruction  to  find  for  the  broker,  if  it  was  through  the 
efforts  and  information  given  by  him  that  the  owner  and  the 
purchaser  were  brought  together  as  seller  and  buyer,  given  in 
connection  with  a  charge  that  the  broker  was  entitled  to  com- 
missions if  he  afterwards  became  the  procuring  cause  of  such 
sale,  stated  the  correct  law  of  the  case.  Bowser  v.  Field  (Tex. 
C.  A.  '91),  17  S.  W.  45. 

Sec.  954a.    Improper  modification  of  charge  asked  for  by  de- 
fendant. 

In  an  action  by  real  estate  brokers  for  commissions  a  re- 
quest to  charge  that  plaintiffs  could  not  recover  if  the  pros- 
pective purchasers  had,  in  fact,  and  in  good  faith,  abandoned 
their  negotiations  for  the  purchase  through  plaintiffs  before 
the  matter  was  taken  up  with  the  purchasers  by  another  per- 
son, was  improperly  modified  by  adding  a  further  condition 
to  the  defeat  of  plaintiffs'  recovery,  that  plaintiffs  had  led  de- 
fendants, through  their  attorney,  to  believe  that  plaintiffs  had 


PLEADESTGS,   PRACTICE,   ETC.  551 

abandoned  all  efforts  to  make  a  sale,  and  had  abandoned  the 
idea  of  association  with  the  transaction  any  further;  since,  to 
warrant  a  recovery  for  plaintiffs  their  services  must  have  been 
the  eflficient  cause  of  the  sale,  regardless  of  their  abandonment 
of  the  transaction,  and  defendants,  as  well  as  plaintiffs,  could 
be  the  moving  party  in  the  cancellation  of  the  agency.  Young 
V.  Hubbard,  154  Mich.  218,  15  D.  L.  N.  725,  117  N.  W.  632. 

Sec.  955.    Instniction  that  if  broker  found  a  purchaser  for 
property  on  terms  stated,  entitled  to  commissions,  proper. 

A  real  estate  agent  sued  on  a  contract  for  commissions  for 
a  sale  of  land;  the  contract  was  made  a  part  of  the  complaint, 
but  was  not  introduced  in  evidence ;  the  court  charged  that 
as  plaintiff  had  undertaken  to  effect  a  sale  or  procure  a  pur- 
chaser, in  accordance  with  the  contract,  it  was  necessary  for 
him  to  prove  that  he  had  found  a  purchaser  who  was  willing 
to  take  the  property  on  the  terms  provided  in  the  contract. 
Held,  that  as  the  charge,  when  referring  to  the  complaint, 
was  clearly  correct,  and  the  court  had  evidently  given  it  un- 
der the  impression  that  the  contract  was  in  evidence,  plaintiff 
could  not  be  heard  to  object.  Hegman  v.  Hood,  3  Ind.  App.  456, 
29  N.  E.  1141. 

Sec.  956.    Instruction  premature,  as  jury  should  first  find  that 
agent  was  authorized  to  act  for  principal. 

In  an  action  by  a  real  estate  broker  to  recover  on  a  special 
contract  for  procuring  a  purchaser,  the  contract  having  been 
made  by  one  alleged,  to  be  the  agent  of  the  owner,  and  the 
authority  of  the  agent  being  one  of  the  issues,  the  court  prop- 
erly refused  an  instruction  stating  that  the  plaintiff  was  en- 
titled to  recover  if  he  was  employed  by  the  owner,  or  some 
one  acting  for  her,  without  stating  that  such  person  must  be 
authorized  to  so  act.    Funk  v.  Latta,  43  Neb.  739,  62  N.  W.  65. 

Sec.  956a.    Charge  in  case  of  implied  contract  held  correctly 
given. 
In  an  action  for  commissions,  it  was  admitted  that  defend- 
ant sold  the  property,  and  the  court  instructed  that    if  plain- 
tiff was  a  means  of  procuring  a  purchaser  for  the  property, 


552  AMERICAN   LAW   RKIL  ESTATE   AGENCY. 

and  defendant  agreed  to  pay  a  reasonable  commission  for  his 
services,  or  permitted  plaintiff  to  render  services  under  circum- 
stances which  would  lead  a  reasonably  prudent  man  to  believe 
that  plaintiff  expected  compensation  therefor,  the  jury  should 
find  for  the  plaintiff.  Held,  that  the  instruction  properly  sub- 
mitted the  question  whether  the  defendant  agreed  to  pay  plain- 
tiff for  his  services,  or  permitted  him  to  render  them  under 
circumstances  leading  a  reasonably  prudent  man  to  believe  com- 
pensation was  expected.  Bullock  v.  Menninger  (Ky.  Ct.  App. 
'10),  125  S.  W.  256.    See  also  Sec.  931. 

Sec.  957.  Instruction  that  if  plaintiff  performed  some  service 
though  he  did  not  sell,  entitled  to  some  compensation, 
proper. 

In  an  action  to  recover  for  the  value  of  services  as  agent 
in  selling  real  estate,  when  there  is  testimony  tending  to  show 
that  the  plaintiff  rendered  some  service,  but  did  not  effect  a 
sale,  if  the  jury  believed  that  he  rendered  some  service,  an 
instruction  that  he  is  entitled  to  recover  on  a  quantum  meruit' 
is  not  improper.  McMurtry  v.  Madison,  18  Neb.  291,  25  N.  W. 
85.  (This  is  contrary  to  the  general  rule,  that  the  agent  stakes 
his  efforts  upon, success,  and  if  unsuccessful  loses  all.) 

Sec.  958.    Instruction  is  erroneous,  that  there  is  room  for  a 

verdict  of  no  cause  of  action,  where  defendant  admits 

broker  performed  services. 

Where  defendant  admits  that  plaintiff  was  instrumental  in 

effecting  the  sale,  but  disputes  the  value  of  the  services,  it  is 

error  to  charge  the  jury  that  there  is  room  for  a  verdict  of  no 

cause  of  action.     Scrihner  v.  Hazeltine,  79  Mich.  37,  44  N.  W. 

618. 

Sec.  959.  Instruction  that  if  agreement  was  as  claimed  by 
defendant  plaintiff  entitled  to  verdict,  improper. 

Plaintiff  having  brought  defendant  and  a  purchaser  together, 
a  sale  was  effected  by  them  for  $10,000;  plaintiff  claimed  that 
he  was  authorized  to  sell  for  this  amount  and  for  a  commission 
thereon,  and  after  testifying  to  this  agreement,  he  testified 
that  just  before  and  after  defendant  made  the  sale  he  told 


PLEADINGS,  PRACTICE,  ETC.  553 

plaintiff  that  he  would  make  it  satisfactory  to  him  and  pay  him 
for  his  services;  defendant's  claim  was  that  plaintiff  was  to 
receive  as  commissions  only  such  sum  as  he  should  obtain  in 
excess  of  $10,000.  Held,  that  there  was  nothing  in  the  case 
which  entitled  plaintiff  to  an  instruction  that,  if  the  agreement 
was,  in  the  first  place,  as  claimed  by  defendant,  still  plaintiff 
was  entitled  to  a  verdict  if  he  consented  to  the  sale  for  $10,000, 
and  the  defendant  thereupon  renewed  his  promise  to  pay  the 
commission.     MoreJiouse  v.  Bemsen,  59  Conn.  392,  22  A.  427. 

Sec.  960.    Instruction  on  contract,  either  joint  or  several,  that 
defendant  only  liable  for  share,  properly  refused. 

Where  the  evidence  shows  that  defendant's  contract  to  pay 
plaintiffs  a  certain  commission  for  a  sale  of  land,  is  either  a 
joint  contract  with  that  of  other  owners  of  the  land,  or  is  an 
individual  contract,  the  court  properly  refused  to  charge  that 
defendant  is  only  liable  for  his  share  of  the  commission  to  the 
extent  of  his  individual  interest;  their  liabilities  can  not  be  ap- 
portioned.   Mosseau  v.  La  Roche's  Sons,  80  Ga.  568,  5  S.  E.  780. 

Sec.  961.  Instruction  that  if  jury  find  contract  made  and  lots 
sold,  plaintiff  entitled  to  commissions,  proper. 
In  an  action  for  commissions  on  sales  of  lots,  an  instruc- 
tion, after  stating  the  respective  claims  of  the  parties,  that  if 
the  jury  find  that  the  arrangement  alleged  by  plaintiff  was 
made  and  after  that  arrangement  defendant's  lots  were  sold 
plaintiff  is  entitled  to  recover  the  amount  claimed  by  him  as 
commissions,  is  proper,  there  being  no  question  as  to  the  price 
for  which  the  lots  were  sold.  Ockenfells  v.  Moeller,  79  Mich. 
314,  44  N.  W.  790. 

Sec.  962.    Instruction  that  broker  should  have  exercised  the 
greatest  care,  requires  too  high  a  degree  of  care. 

In  an  action  on  notes  defendant  pleaded  in  reconvention  that 
she  had  given  plaintiff  certain  money  to  loan  for  her,  but  which, 
through  his  negligence,  she  had  lost;  the  evidence  tended  to 
prove  that  plaintiff  had  received  a  commission  from  the  bor- 
rower for  making  the  loan.  Held,  an  instruction  that  if  plain- 
tiff received  a  profit  from  the,  lending  he  was  bound  to  use  the 


554  AMERICAN   liAW   REAL   ESTATE   AGENCY 

greatest  degree  of  care  that  an  ordinarily  prudent  person  would 
exercise  under  like  circumstances,  was  erroneous,  as  requiring 
too  high  a  degree  of  care;  plaintiff,  as  bailee  or  broker,  being 
only  required  to  exercise  the  care  of  an  ordinarily  prudent  per- 
son.   Caruthers  v.  Ross  (Tex.  Civ.  App.  '01),  63  S.  W.  911. 

Sec.  963.  Instruction  that  it  was  incumbent  on  agent  to  show 
land  worth  the  price  error. 

Plaintiff  authorized  defendant,  who  was  a  broker,  to  sell  a 
tract  of  land,  and  to  contract  and  advertise  at  plaintiff's  ex- 
pense; it  was  afterwards  agreed  that  the  advertisement  should 
be  discontinued,  and  plaintiff  told  defendant  that  if  he  got  a 
piece  of  property  to  sell  for  which  plaintiff  could  turn  in  his 
property  as  part  payment  he  desired  to  know  it ;  afterward  de- 
fendant and  others  obtained  an  option  on  some  land,  and 
notified  plaintiff,  who,  on  being  told  of  the  price  which  defend- 
ant and  his  associates  were  to  pay  for  it,  purchased  it,  after 
examination,  giving  his  land  as  part  payment;  later,  plaintiff 
sued  on  the  ground  that  defendant  was  his  agent  and  liable  to 
him  for  the  profit.  Held,  that  the  business  was  in  no  sense 
confidential,  and  it  was  error  to  instruct  that  it  was  incumbent 
on  defendant  to  show  that  when  plaintiff  purchased  he  had 
knowledge  of  all  the  facts,  and  that  the  land  was  worth  what 
he  paid  for  it.  Pomeroy  v.  Wimer,  167  Ind.  440,  78  N.  E.  233, 
79  N.  E.  446. 

Sec.  964.  Instruction  that  although  agent  could  sell  land  at 
price  fixed,  did  not  excuse  from  selling  at  best  price  ob- 
tainable, proper. 

In  an  action  against  brokers  to  recover  money  retained  by 
them  out  of  the  purchase  price,  an  instruction  that  though 
plaintiff  gave  defendants  authority  to  sell  his  land  for  a  spe- 
cific sum  per  acre,  such  authority  did  not  excuse  the  defend- 
ant from  selling  for  the  best  obtainable  price,  was  not  errone- 
ous, on  the  rule  that  it  made  the  agent  exceed  the  instruc- 
tions of  his  principal,  and  made  him  liable  if  he  did  not.  Harri- 
son V.  Lakeman,  189  Mo.  581,  88  S.  W.  53;  Lightenstein  v. 
Mott,  91  N.  Y.  S.  57,  99  App.  Div.  570.     See  also  Sec.  290. 


PLEA.DINGS,   PRACTICE,   ETC.  DDD 

Sec.  965.  Instruction  assuming  from  purchaser  giving  check 
to  seller,  who  turned  it  over  to  broker,  that  latter  received 
it  from  purchaser,  proper. 

Where,  in  an  action  to  recover  from  brokers  a  portion  of 
the  purchase  money  retained  by  them  for  effecting  a  sale  of 
plaintiff's  land,  the  evidence  showed  that  the  purchaser  gave 
his  check  to  plaintiff,  and  he  turned  it  over  to  defendants, 
who  subsequently  gave  plaintiff  their  check,  an  instruction  as- 
suming that  defendants  received  the  money  from  the  purchaser 
was  not  erroneous.  Harrison  v.  Lakeman,  189  Mo,  581,  88  S. 
W.  53. 


Sec.  966.    Instruction  that  if  broker  misread  contract  to  prin- 
cipal to  deceive,  not  binding  on  him,  proper. 

Where  a  land  owner  sued  his  brokers,  who  had  effected  a 
sale,  to  recover  a  portion  of  the  purchase  money  which  had 
been  retained  by  them,  on  the  ground  that  the  contract  was 
not  binding  on  him,  because  he  had  been  fraudulently  induced 
to  enter  into  it  by  the  act  of  the  defendants  in  not  correctly 
reading  the  contract  to  him,  and  also  on  the  ground  that  the 
contract  had  been  qualified  by  the  alteration  thereof  by  de- 
fendants, an  instruction  that  if  plaintiff  signed  the  original 
contract,  defendants  in  reading  it  to  him  having  fraudulently 
deceived  him,  then  the  contract  was  not  binding,  was  not  er- 
roneous, on  the  theory  that  the  action  was  not  one  for  the 
cancellation  of  a  contract.    Id. 

Sec.  967.    Instruction  that  contract  was  severable,  and  bro- 
ker entitled  to  compensation  for  one  deal,  proper. 

Evidence  held  conclusive  that  the  contract  by  which  appel- 
lant agreed  to  pay  a  commission  of  one  dollar  per  acre  for 
procuring  contemplated  exchanges  of  real  estate  for  other  prop- 
erty was  not  an  entire  but  a  severable  contract;  the  respond 
ent  was  entitled  to  his  commissions  upon  effecting  one  of  the 
contemplated  trades,  and  the  court  did  not  err  in  so.  instruct- 
ing the  jury.  Goodspeed  v.  Miller,  98  Minn.  457,  108  N.  W. 
817.    See  also  Sec.  496. 


556  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  968.  Instruction  that  propositions  were  substantially  the 
same,  erroneous,  being  by  different  brokers  and  different. 

In  an  action  by  a  real  estate  broker  for  commissions,  it 
appeared  that  plaintiff  obtained  for  defendant's  property,  val- 
ued at  $90,000,  an  offer  consisting*  of  an  equity  in  certain 
apartment  houses  estimated  at  $60,000,  and  an  equity  in  cer- 
tain dwelling  houses  estimated  at  $30,000,  which  offer  was  de- 
clined; that  plaintiff  thereafter  obtained  from  the  same  per- 
son an  offer  of  an  apartment  house,  and  a  mortgage  for  $30,000 
on  the  property  to  be  taken  from  defendant,  which  was  also 
declined;  and  that  another  broker,  in  ignorance  of  w'hat  plain- 
tiff had  done,  subsequently  obtained  from  the  same  person  the 
offer  of  an  equity  in  an  apartment  house  estimated  at  $15,000, 
and  mortgages  for  $85,000  on  the  property  taken  of  defendant, 
which  defendant  accepted.  Held,  that  the  offer  so  accepted 
was  substantially  different  from  either  of  those  submitted  by 
plaintiff,  and  therefore  an  instruction,  on  the  theory  that  they 
were  substantially  the  same,  was  misleading.  Crowning  shield 
V.  Foster,.  169  :\Iass.  237,  47  N.  E.  879. 

Sec.  969.  Instruction  proper  that  if  contract  was  altered 
before  purchaser  executed  it,  there  was  no  meeting  of 
minds. 

Where  a  broker,  in  an  action  for  services  in  procuring  de- 
fendant a  purchaser  for  land,  claimed  that  both  parties  had 
signed  duplicate  contracts  of  sale,  and  defendant  claimed  that 
after  signing  the  papers  the  purchaser  took  them  and  signed 
only  after  making  material  alterations  therein,  and  that  he 
thereupon  refused  to  re-execute  the  contracts  as  altered,  and 
that  they  were  never  delivered,  it  was  error  to  refuse  an  in- 
struction that  if,  after  defendant  executed  the  contracts,  they 
were  altered  before  the  purchaser  executed  them,  and  were 
never  subsequently  re-executed,  there  was  no  meeting  of  minds. 
Bruce  v.  Hiirlhut,  QQ  N.  Y.  S.  1127,  54  App.  Div.  616 ;  Ballou 
V.  Bergvendsen,  9  N.  D.  285,  83  N.  W.  10.     See  also  Sec.  996. 

Sec.  970.  Instruction  erroneous  that  broker  to  find  purchaser 
is  entitled  to  commissions,  though  paid  by  purchaser. 

Plaintiff  was  employed  by  defendant  to  find  a  purchaser  for 
lands,  and  was  also  under  an  agreement  with  certain  prospec- 
tive purchasers  by  which  he  was  to  participate  with  them  in 


PLEADINGS  PRACTICE.  ETC.  557 

the  advantages  of  the  purchase  if  made;  he  induced  these  pur- 
chasers to  inspect  the  lands,  and  on  their  objecting  to  the 
price,  defendant,  unknown  to  them,  included  the  plaintiff's 
commissions  from  defendant,  urging  them  to  make  the  pur- 
chase, and  finally  induced  them  to  agree  to  do  so;  afterwards, 
when  they  discovered  the  dual  character  of  plaintiff's  agency, 
they  refused  to  consummate  the  contract  and  defendant  re- 
fused to  pay  plaintiff  commissions,  whereupon  he  brought  suit 
therefor.  Held,  that  a  charge  that  if  defendant  employed 
plaintiff  to  find  a  purchaser  at  a  price  which  would  be  satis- 
factory to  defendant  and  the  purchaser,  defendant  could  not 
defeat  the  action  by  proof  that  plaintiff  was  also  to  be  paid 
for  his  services  by  the  purchaser,  was  erroneous.  Green  v. 
Southern  States  Lumber  Co.,  141  Ala.  680,  37  S.  670.  See  also 
Sec.  314. 

Sec.  970a.    Erroneous  instruction  to  jury  as  to  waiver. 

Where  the  only  testimony  as  to  whether  or  not  there  was 
a  modification  of  the  agreement  of  defendant  that  plaintiff, 
a  real  estate  agent,  should  have  a  commission  if  a  trade  of 
defendant's  property  was  made  with  S.,  was  defendant's  tes- 
timony, contradicted  by  plaintiff,  that  after  the  first  attempt 
at  a  trade  had  failed,  he  had  a  conversation  with  plaintiff, 
in  which  plaintiff  said  that  S.  would  not  trade,  and  that  they 
would  drop  the  deal,  and  that  if  defendant  disjjosed  of  the 
property  himself,  or  through  another  agent,  he  did  not  expect 
a  commission;  that  he  only  expected  one  if  he  closed  the  deal 
himself;  the  only  question  for  the  jury  was  whether  such  con- 
versation occurred,  as,  if  it  did,  plaintiff  would  be  presumed 
to  have  understood  it,  so  that,  the  sale  having  been  consum- 
mated by  another  agent,  it  was  error  to  instruct  that  for  de- 
fendant to  escape  liability  to  plaintiff  he  must  show,  not  only 
that  he  understood  plaintiff  had  waived  his  claim  to  a  com- 
mission, but  also  that  plaintiff  understood  that  he  was  to  waive 
such  claim.     Romans  v.  Thew  (Iowa  Sup.  '09),  120  N.  W.  629. 

Sec.  971.  Instruction  properly  refused  that  if  property  was 
brought  to  defendant's  notice  in  advance  of  plaintiff's, 
latter  not  entitled  to  recover  share  of  commissions. 

Where,  in  an  action  by  a  real  estate  broker  to  recover  from 
defendant  one-half  of  the  commissions  received  by  the  latter 


558  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

on  a  sale  of  certain  property  for  the  sale  of  which  the  plain- 
tiff was  agent,  the  complaint  alleged  that  plaintiff  brought  the 
property  to  defendant's  notice,  that  the  latter  agreed  to  co- 
operate with  plaintiff  in  the  sale  of  the  property,  and  in  con- 
sideration of  his  bringing  the  same  to  defendant's  notice  and 
of  his  services,  defendant  agreed  to  pay  plaintiff  one-half  of 
the  commissions  received  on  the  sale  of  the  property,  the  court 
properly  refused  to  charge  that  if  the  premises  in  question  were 
brought  to  defendant's  notice  prior  to  the  plaintiff's  bringing 
notice  thereof  to  defendant,  he  could  not  recover  on  the  con- 
tract. Alden  v.  Robinson,  98  N.  Y.  S.  675. 
Sec.  972.  Instruction  to  find  for  defendant  error,  where 
plaintiff  shows  he  induced  buyer  to  make  offer  accepted. 

In  an  action  for  commissions  for  the  sale  of  real  estate,  the 
only  evidence  introduced  was  by  the  plaintiff,  which  showed 
an  employment  to  sell  land  at  a  fixed  price;  that  the  agent  in- 
duced the  purchaser  to  make  an  offer  for  it;  that  the  offer  was 
finally  accepted  upon  a  sale  of  the  property  at  auction  on  the 
terms  of  the  purchaser's  offer  to  the  agent;  there  was  no  no- 
tice of  discharge  from  further  services  given;  and  the  ser- 
vices were  worth  a  certain  sum,  as  fixed  by  the  contract  of 
employment,  which  was  proved.  Held,  that  the  court  erred  in 
giving  peremptory  instructions  at  the  close  of  plaintiff's  tes- 
timony to  find  for  the  defendants.  W^st  v.  Prewitt,  19  Ky. 
L.  R.  1480,  43  S.  W.  467;  Muskowitz  v.  Miller,  113  N.  Y.  S. 
1037. 

Sec.  973.    Instruction  that  plaintiff  was  entitled  to  recover  if 
cause  of  sale  error,  where  employment  as  agent  is  in  issue. 

"Where  the  question  whether  a  real  estate  broker  was  em- 
ployed by  the  owner  is  in  issue  in  an  action  for  broker's  com- 
missions, and  the  evidence  thereon  is  conflicting,  it  is  error  to 
instruct  that  the  broker  is  entitled  to  recover,  if  he  was  the 
procuring  cause  of  sale,  for  the  commissions  as  claimed,  as  the 
instruction  takes  the  question  of  employment  from  the  jury. 
Benedict  v.  Pell,  74  N.  Y.  S.  1085,  70  App.  Div.  40. 
Sec.  974.  Instruction  that  if  contract  sued  on  was  different, 
plaintiff  barred  recovery  error,  is  a  question  of  law. 

In  an  action  by  a  broker  to  recover  commissions  for  finding 
a  purchaser  for  land,  an  instruction  that  if  the  contract  sued 


PLE^VDINGS,    PRACTICE,   ETC.  559 

on  dinered  from  the  contract  made,  plaintiff  could  not  re- 
cover, was  erroneous,  as  leaving  a  question  of  law  to  the  jury. 
Nichols  V.  WJviiacre,  112  Mo.  App.  G92,  87  S.  W.  594. 

Sec.  975.  Instruction  on  defendant's  right  to  terminate 
agency,  "broker  entitled  to  fruits  of  seed  sown,"  error. 
In  an  action  by  a  broker  to  recover  commissions  for  a  sale 
of  land,  it  appeared  that  some  months  after  the  authority  to 
sell  had  been  revoked  for  failure  of  the  broker  to  procure  a 
purchaser,  the  owners  sold  the  land  to  one  with  whom  the  bro- 
ker had  attempted  to  engotiate  a  sale.  Held,  error  to  submit 
the  cause  to  the  jury  to  determine  whether  the  plaintiff  was 
the  efficient  cause  in  procuring  the  sale,  and,  on  defendant's 
request,  to  charge  that  defendant  had  the  right  to  terminate 
his  employment  at  any  time,  if  he  did  not  within  a  reasonable 
time  produce  a  purchaser,  to  reply:  "I  have  already  charged 
that,  but  that  does  not  prevent  him  from  being  entitled  to  the 
fruits  of  the  seed  he  had  already  sown."  Donovan  v.  Weed, 
182  N.  Y.  43,  74  N.  E.  563. 

Sec.  975a.  Erroneous  instruction  containing  expression  of 
opinion  by  the  court  on  the  weight  of  the  evidence. 
In  an  action  by  a  broker  for  commissions,  the  issue  was 
whether  plaintiff  had  sent  the  purchaser  to  defendant,  and 
there  was  evidence  for  defendant  that  plaintiff  had  told  de- 
fendant that  he  did  not  know  the  purchaser.  The  court  in- 
structed the  jury  that,  if  they  found  any  testimony  to  the 
contrary  of  plaintiff's  assertion  that  he  sent  the  purchaser  to 
defendant,  they  were  at  liberty  to  find  it,  but  if  they  could 
not,  then  they  were  bound  to  take  the  testimony  as  it  stood, 
and  that  they  were  to  examine  the  evidence  and  find  wherein 
or  whereby  there  was  any  testimony  to  the  effect  that  the  pur- 
chaser did  not  go  to  defendant's  house  under  the  direction  of 
plaintiff,  and,  if  they  found  any  such  testimony,  to  consider  it, 
but  if  they  found  no  such  testimony  that  their  duty  was  plain. 
Held,  that  the  charge  was  erroneous  as  an  expression  of  opinion 
by  the  court,  that  there  was  no  testimony  in  the  record  contra- 
dictory to  plaintiff's  assertion  that  he  sent  the  purchaser  to 
defendant.  Barendsen  v.  Wilder  (Mich.  Sup.  '09),  122  N.  V{. 
355,  16  D.  L.  N.  529. 


560  MEKICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  976.  Instruction  proper  that  broker  could  not  recover 
unless  principal  knew  he  was  employed  by  seller. 
If,  in  an  action  against  a  buyer  of  land  for  a  broker's  com- 
missions, the  plaintiff's  evidence  leaves  it  doubtful  whether, 
while  acting  for  defendant,  he  also  was  employed  by  A.,  the 
owner  of  the  land,  to  sell  it,  or  simply  had  an  option  on  the 
property  at  the  price  named,  the  defendant  is  entitled  to  have 
the  jury  instructed  that,  "if  the  plaintiff  acted  as  agent  for 
A.,  without  disclosing  the  fact  that  he  was  such  agent  to  the 
defendant,  he  can  not  recover  a  commission  from  the  defend- 
ant." Carpenter  v.  Fisher,  175  Mass.  9  55  N.  E.  479.  See 
also  Sec.  314.  -    , 

Sec.  977.  Instruction  proper  that  brokers  could  not  recover 
unless  defendant  knew  they  would  get  pay  from  the  other 
party. 
On  the  issue,  whether  real  estate  brokers  suing  to  recover 
commissions  for  effecting  an  exchange  of  property,  who  had 
stipulated  for  commissions  from  both  parties,  were  agents  for 
both  parties  so  as  to  forfeit  their  right  to  compensation,  or 
mere  middlemen,  the  court  charged  that  no  recovery  could  be 
had  if  the  contract  was  one  of  agency,  instead  of  that  of  mid- 
dlemen; that  the  brokers  claimed  that  all  they  agreed  to  do 
was  to  find  a  man  willing  to  make  the  trade;  and  that  de- 
fendant claimed  that  they  agreed  to  take  the  property  and  do 
the  best  they  could  with  it;  and  that,  if  defendant's  contention 
v.ere  true,  the  brokers  could  not  recover  commissions,  unless 
defendant  knew,  before  employing  them,  that  they  had  stipu- 
lated for  commissions  from  the  other  party.  Held,  that  the 
instruction  was  suflficient.  Friar  v.  Smith,  120  Mich.  411,  79 
N.  W.  633,  46  L.  R.  A.  229.     See  also  Sec.  314. 

Sec.  978.  Instruction  that  if  commission  was  to  be  paid,  de- 
fendant would  not  have  sold  and  plaintiff  barred  recovery, 
properly  refused. 

In  an  action  by  a  real  estate  broker  for  commissions,  in 
which  there  was  evidence  that  the  principal  had  sold  the  prop- 
erty to  a  purchaser  procured  by  the  broker,  an  instruction  that 
the  defendant  would  not  have  sold  the  property  if  he  had 
known  that  he   had   to   pay   plaintiff   a   commission,   plaintiff 


PLEIDINGS,  PRACTICE,  ETC.  561 

could  not  recover,   was  properly  refused.     Enochs  v.  Paxton, 
87  Miss.  660,  44  S.  14. 

Sec.  979.    Instruction  that  buyer  by  repeating  offer  was  en- 
abling plaintiff  to  recover,  error  as  suggesting  conspiracy. 

In  an  action  by  a  real  estate  broker  for  a  commission  for 
procuring  a  purchaser  for  a  farm,  who  at  first  stated  to  the 
owner  that  he .  would  not  buy  it,  but  who,  on  the  same  day, 
offered  to  take  it  on  the  terms  agreed  on,  an  instruction  that 
he  would  have  no  right  to  return  and  offer  to  take  the  farm 
for  the  mere  purpose  of  collecting  a  commission  from  defend- 
ant, was  .erroneous,  as  suggesting  a  conspiracy  between  the 
broker  and  the  purchaser.  Sallee  v.  McMurray,  113  Mo.  App. 
253,  88  S.  W.  157. 

Sec.  980.  Instruction  to  find  for  plaintiff  if  believed  he  was 
trying  to  sell  land,  not  warranted  by  pleadings. 
Where  a  real  estate  broker,  suing  for  commissions,  alleges 
that  through  his  efforts  the  land  was  sold,  an  instruction  that 
if  the  jury  believe  plaintiff  was  trying  to  sell  the  land,  etc., 
they  should  find  for  him,  is  not  warranted  by  the  pleadings. 
Yarbrough  v.  Creager  (Tex.  Civ.  App.  '03),  77  S.  W.  645. 

Sec.  981.  Instruction  proper  defining  distinction  between 
selling  to  broker's  customer  and  to  a  third  party. 
In  an  action  for  commissions  on  a  sale  of  defendant's  land, 
an  instruction  that  the  jury  should  find  for  the  defendant  if 
the  plaintiff  had  been  unable  to  procure  a  purchaser,  and 
had  abandoned  his  efforts  to  procure  one,  was  not  reversible 
error  for  making  defendant's  rights  dependent  upon  two  states 
of  facts,  either  of  which  was  sufficient  in  itself,  in  view  of  the 
fact  that  plaintiff's  claim  was  that  he  found  a  purchaser  to 
whom  defendant  sold,  pending  plaintiff's  negotiations  for  a 
sale,  and  that  the  court  also  instructed  on  the  distinction  be- 
tween selling  to  the  plaintiff's  customer  and  to  a  third  part.y. 
Van  Tohcl  v.  Stetson,  32  Wash.  683,  73  P.  788. 

Sec.    982.     Instruction    that    sale    effected    through   broker's 
efforts  is  meritorious,  improper. 

In  an  action  by  real  estate  agents  for  commissions,  a  charge 
that    where   a  sale  is  effected  through   the   efforts  of   a  real 


562  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

estate  agent,  "his  services  are  regarded  in  law  as  highly  meri- 
torious and  beneficial,"  is  improper.  Bowie  v.  Gage,  127  "Wis. 
245,  106  N.  W.  1074,  115  Am.  St.  R.  1010. 

Sec.  983.    Instruction  that  broker  must  shov/  retainer  or  ac- 
ceptance by  principal,  not  usually  prejudicial. 

An  instruction  that  a  broker  must  show  a  retainer  or  that 
the  principal  accepted  his  agency  and  ratified  his  acts,  is  not 
prejudicial  to  the  principal,  although  there  is  no  evidence  of 
ratification,  where  the  jury  was  instructed  as  to  what  is  nec- 
essary to  constitute  a  ratification.  Duncan  v.  Borden,  13  Colo. 
App.  481,  59  P.  60. 

Sec.  984.    Instruction  assuming  broker  acted  for  defendant 
erroneous,  although  that  separately  submitted. 

In  an  action  by  a  real  estate  broker  for  commissions,  the  de- 
fendant answered  denying  the  broker's  employment,  and  tes- 
tified that  he  merely  inquired  of  the  broker  if  the  latter  had  a 
customer  who  would  exchange  land  for  the  defendant's  stock; 
that  the  broker  responded  that  he  had;  that  defendant  then 
said  he  was  putting  in  his  own  time  trading,  and  wanted  it 
understood  that  he  would  not  pay  a  commission ;  the  court  in- 
structed, if  it  appeared  that  at  defendant's  instance  the  bro- 
ker procured  a  customer,  etc.,  and  that  it  appeared  that  when 
defendant  listed  his  property  with  the  broker,  the  latter  in 
bringing  the  parties  together,  etc.,  was  acting  for  both  of  them. 
Held,  that  the  instruction  was  erroneous  in  assuming  that  the 
broker  was  acting  for  the  defendant,  though  the  issue  as  to 
defendant's  promise  to  pay  a  commission  was  separately  sub- 
mitted.   CasadAj  v.  Carraher,  119  Iowa,  500,  93  N.  W.  386. 

Sec.  984a.     Instruction  to  find  for  plaintiff  held  not  mislead- 
ing when  condition  favoring  defendant  also  given. 

Where,  in  an  action  for  a  broker's  commissions  on  a  sale  of 
real  estate,  the  court  charged  that  the  jury  should  find  for  de- 
fendant, if  a  specified  condition  had  been  imposed  for  the  sale, 
and  the  sale  was  made  without  reference  thereto,  an  instruction 
that  if  the  broker  by  himself,  or  through  his  sub-agent,  pro- 
duced a  purchaser  ready,  able  and  willing  to  buy  on  the  terms 


PLELIDINGS,   PRACTICE,    ETC.  563 

agreed  on  between  the  broker  and  the  owner,  the  owner  was 
liable,  was  not  misleading,  for,  if  the  specified  condition  had 
been  imposed,  the  charge  required  proof  that  the  sale  had  been 
effected  accordingly.  Hansen  v.  Williams  (Tex.  Civ.  App.  '08), 
113  S.  W.  312. 

Sec.  985.  Instruction  that  unless  they  find  contract  entered 
into  must  find  for  defendant,  insufficient. 
In  an  action  by  a  real  estate  agent  for  commissions,  in  which 
defendant  claimed  that  a  contract  to  pay  commissions  was  not 
made  with  plaintiff  personally,  but  with  him  as  agent  of  his 
father,  an  instruction  that  the  first  question  to  determine  was 
whether  the  contract  was  between  plaintiff  and  defendant,  or 
between  plaintiff's  father  and  defendant,  and  that  unless  the 
jury  find  that  the  contract  was  entered  into  between  plaintiff 
and  defendant  they  should  find  for  the  latter,  was  not  a  suffi- 
cient statement  of  the  principle  that  defendant  was  not  liable 
if  the  contract  was  made  with  the  principal  as  agent.  Snyder 
V.  Fidler,  125  Iowa,  378,  101  N.  W.  130. 

Sec.  986.  Instruction  that  broker  could  recover  if,  when  nego- 
tiations were  broken  off,  buyer  still  intended  to  buy 
erroneous. 

In  an  action  for  commissions  on  a  sale  of  land,  an  instruction 
which  assumes  a  ratification  of  plaintiff's  authority  to  sell,  but 
directs  that  plaintiff  might  recover  if  the  subsequent  sale  of 
the  land  by  the  owner  to  the  same  person  with  whom  plain- 
tiff has  previously  negotiated,  if  at  the  time  negotiations  with 
him  were  broken  off,  the  purchaser  had  not  given  up  the  idea 
of  ultimately  making  the  purchase,  is  erroneous.  Crillet  v. 
Corum,  5  Kan.  608.     See  also  Sec.  447. 

Sec.  986a.  Charge  of  cancellation  of  broker's  contract  impro-^- 
erly  refused. 
In  an  action  for  a  broker's  commissions,  an  instruction  that 
if  defendant  told  plaintiff,  or  his  partner,  to  take  the  land 
off  the  market,  that  it  was  not  for  sale,  to  find  for  defendant, 
was  improperly  refused,  though  the  court  in.strncted  in  a  gen- 
eral way  that  plaintiff  could  not  reeovei  if  defendant  had  with- 


564  AMERICAN   LAW   KELU.   ESTATE   AGENCY. 

drawn  authority  to  sell.     Taylor  v.  Bead  (Tex.  Civ.  App.  '08), 
113  S.  W.  191. 

Sec.  987.  Instruction  that  delegated  authority  can  not  be 
re-delegated,  misleading  and  erroneous. 

Where  a  land  owVier  authorized  a  person  to  write  to  an  agent 
authorizing  him  to  sell  real  estate,  which  the  agent  does  pur- 
suant to  the  letter  so  written,  after  which  the  land  owner  dis- 
putes his  authority  to  sell,  an  instruction  that  a  delegated  author- 
ity to  an  agent  to  sell  real  estate  can  not  be  re-delegated,  is 
misleading  and  erroneous.     Gross  v.  Schafer,  29  Kan.  442.     See 

Sec.  987a.  Prejudicial  error  in  charge  to  jury  recalled  for 
further  instructions. 

An  instruction,  in  an  action  for  a  broker's  commissions,  after 
the  jury  had  been  recalled,  and  had  announced  that  they  were 
not  likely  to  agree  upon  a  verdict,  that  such  trials  were  costly 
to  the  county,  that  if  results  are  not  reached  people  lose  faith 
in  the  ability  of  the  courts  to  deliver  justice;  that  the  single 
question  in  the  ease,  which  could  be  solved  readily,  was  whether 
plaintiff,  by  his  sub-agent,  procured  a  customer,  and  whether 
the  parties  dealt,  that  if  so,  plaintiff  was  entitled  to  his  com- 
missions; and  that  the  case  was  the  simplest  ever  presented 
to  a  jury,  was  prejudicial  error,  as  in  fact  directing  a  ver- 
dict for  plaintiff,  though  the  court  had  previously  instructed 
that  before  the  plaintiff  could  recover  he  must  prove  by  a 
fair  preponderance  of  the  evidence  that  defendant  contracted 
with  him,  or  that  she  authorized  her  husband  to  do  so,  etc. 
Ebert  v.  Wilcox,  155  Mich.  69,  118  N.  W.  735,  15  D.  L.  N.  967. 

Sec.  988.  It  was  error  to  refuse  instruction  that  plaintifiF's 
employment  to  procure  a  tenant  was  revoked  by  inter- 
view. 

Where,  in  an  action  for  a  broker's  commissions  in  negotiat- 
ing a  hotel  lease,  the  court  charged  that  the  jury  could  find 
for  the  plaintiff,  either  if  plaintiff's  agency  had  been  revoked 
or  if  the  revocation  was  made  in  bad  faith,  the  refusal  of  cer- 
tain instructions,  "that  under  the  evidence  plaintiff's  em- 
ployment to  procure  a  tenant  was  revoked  by  what  took  place 


PLEADINGS,    PRACTICE,    ETC.  565 

in  a  certain  interview  between  plaintiff  and  defendant,"  could 
not  be  sustained  on  the  theory  that  a  revocation,  if  in  fraud 
of  plaintiff's  rights,  would  not  amount  to  a  revocation.  Cadi- 
gan  v.  Crabtree,  192  Mass.  230,  78  N.  E.  412. 

Sec.  989.  Instruction  to  find  for  defendant  on  one  state  of 
facts,  for  plaintiff  on  another,  not  inconsistent. 
An  instruction,  in  an  action  by  a  real  estate  agent  for  com- 
missions, to  find  for  defendant  if  he  employed  plaintiff  to 
sell  his  land  and  agreed  to  pay  him  a  commission,  and  subse- 
quently and  before  the  purchaser  had  been  produced  to  defend- 
ant, or  a  written  contract  secured  by  plaintiff  for  a  sale,  de- 
fendant notified  him  that  he  would,  three  days  later,  take  the 
land  from  his  list,  and  that  he  never  made  any  further  effort 
to  sell;  and  an  instruction  to  find  for  plaintiff,  if  defendant 
agreed  to  pay  him  a  commission  for  selling  his  land,  and  plain- 
tiff, as  his  agent,  made  a  verbal  contract  with  E,  to  sell  him 
the  land  on  the  stipulated  terms,  and  a  month  later  E.  made 
a  written  contract  with  plaintiff  to  buy  the  land  on  such 
terms,  and  E.  was  financially  able  to  execute  such  contract, 
though  in  the  time  between  the  making  of  the  verbal  and 
written  contracts  defendant  notified  plaintiff  he  had  termin- 
ated his  agency,  are  not  inconsistent,  and  both  are  correct. 
Kesterson  v.  Chcuvront  (Mo.  App.  '02),  70  S.  W.  1091;  Wein- 
man V.  Spencer  (Tex.  C.  A.  '09),  124  S.  W.  209;  Benton  v. 
Brown  (Iowa  Sup.  '10),  124  N.  W.  815. 

Sec.  990.    Instruction  to  find  for  defendant  if  plaintiff  aban- 
doned employment,  did  not  harm  defendant. 

In  an  action  by  a  real  estate  agent  for  commissions,  in  which 
it  was  claimed  that  plaintiff  had  abandoned  his  agency,  an 
instruction  that  if  the  jury  believed  he  had  abandoned  the 
agency  he  could  not  recover,  though  faulty  for  failure  to  state 
the  specific  facts  alleged  to  constitute  the  abandonment,  could 
not  have  harmed  defendant.  McCormack  v.  Henderson,  100 
Mo.  App.  647,  75  S.  W.  171. 

Sec.  990a.     Charge  held  not  to  require  a  verdict  for  defendant. 

The  evidence  being  conflicting  as  to  whether  the  property 
was  withdrawn  from  the  market  before  or  after  the  owner's 


566  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

employment  of  the  broker,  a  charge,  in  the  broker's  action  for 
compensation,  that  if,  before  the  broker  submitted  the  prop- 
erty for  sale  to  a  prospective  purchaser,  the  owner  had  re- 
fused the  offer  of  the  prospective  purchaser,  defendant  should 
recover,  did  not  require  a  verdict  for  defendant.  Brady  v. 
Maddox  (Tex.  C.  A.  '09),  124  S.  W.  739. 

Sec.  990b.  Charge  interpreted  not  to  require  the  jury  to 
ignore  the  special  charges. 
A  general  charge  that  the  jury  should  find  a  verdict  upon 
a  preponderance  of  the  evidence,  under  the  foregoing  charge, 
followed  by  defendant's  special  charges,  was  not  erroneous  as 
requiring  the  jury  to  find  a  verdict  under  the  general  charge 
alone,  and  to  ignore  the  special  charges,  since  the  jury  could 
not  have  understood  that  after  the  special  charges  were  given 
they  were  to  be  ignored.  Brady  v.  Maddox  (Tex.  Civ.  App. 
'09),  124  S.  W.  739. 

Sec.  991.     Instruction  that  broker  only  required  to  find  pur- 
chaser if  land  had  average  quantity  of  timber,  erroneous. 

Where  in  an  action  for  a  broker's  services  in  the  selling 
of  timber  land,  a  letter  written  by  defendant  was  silent  as  to 
an  "average  quantitj^"  of  timber,  certain  instructions  charg- 
ing that  defendant's  proposition  contained  in  such  letter  only 
required  plaintiff  to  secure  a  purchaser  of  all  land  if  it  con- 
tained an  average  quantity  of  timber,  were  erroneous.  Veatch 
V.  Norman,  109  Mo.  App.  387,  84  S.  W.  350. 

Sec.  992.    Instruction  that  if  defendant  made  promise  verdict 
should  be  for  plaintiff,  correct. 

"Where  plaintiff  seeks  to  recover  $1,000  for  making  a  sale, 
on  the  ground  that  there  was  a  special  contract  therefor,  there 
is  no  error  in  charging  that  if  defendant  made  the  promise, 
the  verdict  should  be  for  plaintiff,  there  .being  no  request  for 
an  instruction  on  the  want  of  consideration,  and  defendant's 
testimony  that,  at  the  time  of  the  sale,  and  before  as  well  as 
afterwards  plaintiff  was  in  his  employ,  and  whatever  services  he 
rendered,  including  any  he  may  have  rendered  in  connec- 
tion with  the  sale,  were  within  the  scope  of  his  said  employ- 


PLEADINGS,  PRACTICE,  ETC.  567 

ment,  and  any  such  special  contract  was  without  consideration, 
being  too  vague  and  uncertain  to  warrant  a  finding  that  the 
special  services  were  within  the  scope  of  any  contract  between 
them  other  than  that  sued  on.  Keyser  v.  Beilly,  191  Pa.  St.  271, 
43  A.  317,  44  Weekly  N.  C.  240. 

Sec.  993.    Instruction  that  agent  through  whose  effort  buyer 
found  entitled  to  commission,  inapplicable  to  proof. 

In  an  action  by  a  broker  for  commissions,  where  there  was 
no  evidence  that  defendant  had  employed  others  to  make  a 
sale  of  the  property,  an  instruction  that  the  agent,  through 
whose  efforts  a  purchaser  was  found,  is  alone  entitled  to  the 
commissions,  though  legally  correct,  was  erroneous  as  inappli- 
cable to  the  proof.  Leech  v.  demons,  14  Colo.  App.  45,  59  P. 
230. 

Sec.  994.  Instruction  authorizing  finding  against  plaintiff, 
though  procuring  cause  of  sale,  erroneous. 
In  an  action  for  the  commissions  of  a  real  estate  broker,  in- 
structions that  if  plaintiff  and  another  broker  both  had  the 
premises  for  sale,  and  the  other  first  directed  the  purchaser's 
attention  to  the  property,  and  first  visited  the  property  with 
him,  he  was  entitled  to  the  commissions,  though  plaintiff  af- 
terwards took  the  purchaser  to  the  property  and  introduced 
him  to  the  owner,  were  erroneous,  because  authorizing  a  find- 
ing against  plaintiff,  though  he  was  the  procuring  cause  of 
sale,  and  as  such  entitled  to  compensation.  Bowser  v.  Mick, 
29  Ind.  App.  49,  62  N.  E.  513. 

Sec.  994a.    Instruction  erroneous  which  disregards  who  was 
the  procuring  cause  of  the  sale. 

"Where,  in  an  action  by  a  real  estate  broker  for  commissions, 
the  issues  involved  the  question  whether  the  efforts  of  the  bro- 
ker were  the  procuring  cause  of  the  sale,  an  instruction  au- 
thorizing a  recovery  on  a  finding  that  the  broker  was  employed 
to  procure  a  purchaser  and  introduced  a  customer  to  the  owner 
to  whom  a  sale  was  subsequently  made,  without  requiring  a 
finding  that  the  broker  was  the  procuring  cause  of  the  sale 
was  erroneous.    Russell  v.  Poor  (Mo.  App.   '08),  115  S.  W.  1. 


568  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Sec.  995.  Instruction  held  inconsistent  with  another  that  con- 
tract had  been  ratified. 
In  an  action  by  a  real  estate  broker  for  commissions,  a  charge 
that  if  the  purchasers  were  accepted  by  defendant  as  satis- 
factory, the  verdict  should  be  for  plaintiff,  but,  if  not,  to  au- 
thorize a  recovery  it  must  be  shown  that  the  purchasers  were 
ready,  willing  and  able  to  perform  their  part  of  the  contract, 
within  a  reasonable  time  from  that  named  therein,  was  incon- 
sistent with  another  charge  that  the  contract  had  been  ratified 
and  confirmed  by  defendant  and  was  binding  on  him.  Flynn 
V.  Jordal,  124  Iowa,  457,  100  N.  W.  326. 

Sec.  996.  Instruction  that  if  plaintiff  materially  altered  con- 
tract, without  defendant's  knowledge,  it  would  not  bind 
him,  not  objectionable. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
the  sale  contract  contained  the  terms  of  the  sale  and  plain- 
tiff's authority,  and  that  he  had  no  right  to  sell  the  land  on 
any  other  terms,  and  if  he  changed  the  contract,  without  de- 
fendant's knowledge  or  consent,  by  striking  out  the  rate  of 
interest  to  be  paid,  it  was  a  material  alteration,  and  would  not 
bind  defendant,  nor  entitle  plaintiff  to  recover  his  commissions, 
was  not  objectionable,  in  that  it  omitted  to  charge  that,  if 
plaintiff  made  the  change  in  good  faith,  believing  that  it  was 
in  accordance  with  the  understanding  of  the  parties,  there  was 
no  fraud.  Robertson  v.  Vasey,  125  Iowa,  526,  101  N.  W.  271. 
See  also  Sec.  969. 

Sec.  997.  Instruction  that  where  owner  knew,  he  is  not  bound 
to  decide  which  was  procuring  cause,  properly  refused. 

An  instruction  that  an  employer  of  two  or  more  real  estate 
brokers  may  make  a  sale  to  the  buyer  produced  by  either  of 
them,  and  is  not  bound  to  decide  which  of  them  is  the  primary 
cause  of  the  purchase,  is  properly  refused,  where  the  evidence 
shows  that  the  employer  of  two  brokers,  sued  by  one  of  them, 
had  full  notice  that  he  was  the  procuring  cause  of  the  sale, 
Eggleston  v,  Austin,  27  Kan.  245. 


PI-EADINGS,    PRACTICE,    ETC.  569 

Sec.  998.  Instruction  that  plaintiff  not  entitled  to  recover 
unless  he  sold  at  price  fixed,  correct. 
In  an  action  to  recover  commissions  for  selling  land,  in  which 
defendants  pleaded  in  their  answer  that  the  contract  was  that 
plaintiff  was  to  sell  the  land  and  have  a  commission  of 
one  and  one-half  per  cent,  if  he  sold  it  at  $90  per  acre,  and 
that  they  had  taken  the  land  out  of  the  hands  of  plaintiff  for 
sale  and  sold  it  themselves,  they  can  not  complain  of  an  in- 
struction to  the  jury  to  find  for  them,  if  the  jury  believed 
that  the  only  contract  was  that  if  plaintiff  would  sell  the 
land  for  defendant  at  the  price  of  $90  per  acre  defendants 
would  pay  one  and  one-half  per  cent,  commissions,  and  that 
plaintiff  failed  to  sell  the  land,  or  find  a  buyer  therefor  at  that 
price.    Prewitt  v.  West,  22  Ky.  L.  R.  492,  55  S.  W.  884. 

Sec.  999.  Instruction,  if  defendant  not  requested  to  furnish 
abstract  of  title,  plaintiff  not  entitled  to  recover,  properly 
refused. 

In  an  action  by  a  broker  for  commissions  for  finding  a  pur- 
chaser for  defendant's  land,  plaintiff  claimed  that  defendant 
had  been  required  to  give  an  abstract  of  title,  which  he  had 
not  done,  hence  defeating  the  sale ;  defendant  denied  that  he 
had  been  "requested;"  but  his  evidence  showed  that  the  ab- 
stract "had  been  required,"  and  the  contract  with  the  broker 
provided  that  "if  required,"  an  abstract  should  be  furnished. 
Held,  that  defendant  could  not  complain  of  the  refusal  of  an 
instruction  that,  if  defendant  was  not  requested  to  furnish  an 
abstract,  plaintiff  was  not  entitled  to  recover.  Bruce  v.  Wolfe, 
102  Mo.  App.  384,  76  S.  W.  723. 

Sec.  1000.  Instruction  erroneous  in  eliminating  question  of 
connection  between  the  transactions. 
Where,  in  an  action  for  a  broker's  services,  plaintiff  claimed 
that  the  defendant  agreed  to  pay  him  $1,000,000  in  case  he 
purchased  a  railroad  Mhich  plaintiff  was  endeavoring  to  sell, 
or  became  interested  therein,  and  plaintiff  claimed -that  there- 
after defendant  did  become  interested  by  participating  in  a 
syndicate  by  which  such  railroad  was  consolidated  with  another, 
an  instruction  that  plaintiff's  contention  was  that  defendant 


570  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

agreed  to  pay  $1,000,000  if  he  went  in  with  any  one  else  in 
the  purchase  of  the  property,  and  that  when  he  participated 
in  the  syndicate,  "he  did  go  in  with  somebody  else,  and  there- 
fore became  indebted  to  him  in  the  sum  of  $1,000,000,"  was 
erroneous,  in  eliminating  the  question  whether  there  was  any 
connection  between  the  transaction  with  the  defendant  and  the 
purchase  of  the  road  by  the  syndicate  of  which  he  afterwards 
became  a  member.  Mingis  v.  Fitzgerald,  95  N.  Y.  S.  436,  108 
App.  Div.  24. 

Sec.  1001.    Instruction  erroneous,  which  confines  to  one  inter- 
pretation, where  terms  of  contract  are  in  dispute. 

Where  the  contract  between  the  broker  and  his  principal  is 
oral,  and  its  terms  are  in  dispute,  it  is  error  to  instruct  the 
jury,  that  if  the  plaintiff  brought  the  purchaser  to  the  notice 
of  the  seller  he  is  entitled  to  commissions,  and  that  that  was 
the  only  question  for  them  to  determine,  unless,  under  the  only 
reasonable  interpretation  of  which  the  language  of  the  parties 
was  susceptible,  in  the  light  of  the  circumstances,  that  was  all 
he  was  required  to  do  to  earn  the  commissions.  Henderson  v. 
Somiehorn,  30  Pa.  Sup.  Ct.  182.    • 

Sec.  1001a.    Erroneous  qualification  in  charge  to  jury. 

In  an  action  by  a  broker  for  commissions  on  a  sale  of  land, 
it  was  error  to  qualify  an  instruction  that  plaintiff  could  not 
recover  if  he  was  acting  for  both  parties,  by  the  statement: 
"Unless  his  double  employment  was  understood,"  without  stat- 
ing, that  it  must  appear  the  buyer  knew,  or  had  been  informed 
by  plaintiff  of  his  relation  to  defendant;  since  the  jury  might 
have  inferred  that  even  if  defendant  knew  plaintiff  was  the 
agent  of  the  buyer,  and  unless  plaintiff  fraudulently  induced 
him  to  believe  that  he  was  serving  only  in  his  interest,  the  fail- 
ure to  disclose  to  the  buyer  the  employment  by  defendant 
would  not  bar  recovery.  8ullivan  v.  Tufts  (Mass.  Sup.  '09), 
89  N.  E.  239. 

Sec.  1002.     Instruction  that  contract  was  invalid,  misleading 
and  prejudicial. 

Plaintiff  claimed  that  defendant  had  promised  to  pay  a  cer- 
tain sum  on  his  procuring  a  contract  for  the  sale  of  his  land, 


PLEADINGS,  PRACTICE,  ETC.  571 

and  that  he  had  done  so;  defendant  contended  that  he  had  so 
promised,  provided  the  sale,  as  agreed  on,  should  be  consum- 
mated. Held,  that  the  question  whether  the  contract  of  sale 
could  be  legally  enforced  was  immaterial,  under  the  issues,  and 
an  instruction  that  it  was  invalid  was  misleading  and  preju- 
dicial.    Baird  v.  GlecJder   11  S.  D.  233,  76  N.  W.  931. 

Sec.  1003.  Erroneous  instruction  not  cured  by  requiring  a 
finding  that  a  contract  still  existed. 
Where  a  broker's  contract  for  services  required  a  sale  of 
nineteen  quarter-sections  of  land  within  thirty  days,  at  $9  per 
acre,  the  broker  to  receive  one  dollar  per  acre  commission,  an 
instruction,  in  an  action  for  commissions  on  the  contract,  that 
if  the  jury  found  that  plaintiff  procured  a  purchaser  for  all 
the  land  within  the  time,  who  was  able,  ready  and  willing  to 
purchase,  then  plaintiff  was  entitled  to  recover  the  amount 
claimed,  though  only  sixteen  quarter-sections  were  sold  to  the 
procured  purchaser,  and  by  the  owner  himself,  for  a  less  sum 
than  the  price  fixed  in  the  contract,  was  not  cured  by  a  pro- 
viso requiring  the  jury  to  find  that  at  the  time  the  sale  was 
finally  consummated  there  still  existed  a  contract  between  plain- 
tiff and  defendant  to  pay  one  dollar  per  acre  commissions. 
Ball  V.  Dolan,  18  S.  D.  558,  101  N.  W.  719. 

Sec.  1004.  Where  agent  testified  owner  agreed  to  all  sales,  it 
was  error  to  instruct  for  defendant  as  to  any. 
Where  an  agent  testified  that  the  owner  agreed  to  the  prices 
at  which  he  sold  the  different  tracts,  it  would  be  error  to  in- 
struct the  jury  to  find  for  the  defendant  as  to  any  of  the  tracts. 
McLane  v.  Goode  (Tex.  Civ.  App.  '02),  68  S.  W.  707. 

Sec.  1005.  Instruction  proper,  that  if  plaintiff  aided  and  as- 
sisted in  sale  of  railway,  defendant  was  liable. 
In  an  action  to  recover  for  services  in  promoting  the  sale  of  a 
street  railway,  it  was  proper  to  instruct  the  jury  that  defend- 
ant was  liable  if  they  found  that  plaintiff  aided  and  assisted  in 
the  negotiations  with  the  prospective  vendee,  where  this  was 
the  gist  of  the  undertaking  sued  on.  Alexander  v.  Wakefield 
(Tex.  Civ.  App.  '02),  69  S.  W.  77. 


572  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  1005a.    Instruction  defining  word  "solicit"  upheld. 

An  instruction  in  an  action  for  commissions  as  sales  agent, 
that  the  word  "solicit,"  as  used  in  the  contract,  meant  to 
seek  for,  and  that  it  was  incumbent  upon  plaintiff  to  show 
that  he  endeavored  to  obtain  purchasers  for  defendant,  per- 
sons who,  in  fact,  did  purchase;  that  it  was  not  necessary  for 
plaintiff  to  show  that  the  purchasers  made  the  trip  solely  upon 
his  solicitation,  but  that  if  the  sale  was  made  to  them  on  ac- 
count of  former  dealings  of  defendant  with  them,  through 
plaintiff' 's  agency  at  the  place  where  plaintiff  resided,  and  that 
plaintiff  aided  and  assisted  in  bringing  them  together,  and 
encouraged  and  endeavored  to  induce  the  purchasers  to  make 
the  trip,  this  -would  be  a  solicitation  by  plaintiff,  entitling  him 
to  commissions  on  the  sale,  imposed  upon  plaintiff  every  bur- 
den resting  upon  him  to  entitle  him  to  recover.  Curlee  v. 
Reeves  (Neb.  Sup.  '09),  123  N.  W.  420. 

Sec.  1006.    Instruction  for  plaintiff  erroneous,  where  the  evi- 
dence is  conflicting. 

In  an  action  for  services  rendered  in  purchasing  property 
where  there  was  a  conflict  in  the  evidence  as  to  whether  or 
not  plaintiff  had  performed  the  services  which  he  was  em- 
ployed to  perform,  a  charge  authorizing'  a  recovery  for  plain- 
tiff, without  requiring  the  jury  to  find  that  he  had  performed 
the  stipulated  services,  Avas  erroneous.  St.  Louis,  S.  W.  P.  Co. 
of  Texas  v.  Irvine  (Tex.  Civ.  App.  '05),  89  S.  W.  428;  Trees 
V.  Milliken  (Ind.  App.  '08),  85  N.  E.  123. 

Sec.  1007.    Instruction  erroneous  which  leaves  the  jury  to  de- 
termine what  constitutes  a  valuable  consideration. 

Plaintiff,  as  broker,  sold  a  ranch  for  defendant,  a  farm 
being  taken  in  exchange  for  part  of  the  price;  defendant  re- 
fused to  pay  any  commissions  on  the  value  of  the  farm;  after 
the  sale  of  the  farm  plaintiff'  sued  for  commissions  thereon, 
claiming  that  he  had  accepted  the  settlement  as  to  commis- 
sions on  the  sale  of  the  ranch,  on  an  agreement  for  a  commis- 
sion on  the  sale  of  tlie  farm;  defendant  claimed  that,  while 
he  had  authorized  plaintiff  to  assist  in  selling  the  farm,  it 
was  sold  by  defendant  himself;  the  court  instructed  that  if  a 
contract  for  commissions  on  a  sale  of  the  farm  was  made  for 


PLEADINGS,  PRACTICE,  ETC.  573 

a  "valuable  consideration,"  and  plaintiff  complied  with  his 
contract,  and  the  farm  was  sold  "at  a  price  and  upon  terms 
acceptable  to  defendant,"  plaintiff  was  entitled  to  recover, 
and  refused  to  ins+ruct  that  "if  defendant  failed  to  pay  all 
the  commissions  for  the  sale  and  excliange  of  the  ranch,  and 
the  parties  agreed  in  lieu  thereof,  he  was  to  have  a  commis- 
sion on  the  sale  of  the  farm,"  etc.,  "plaintiff  was  entitled  to 
recover."  Held,  that  there  was  error  in  the  giving  and  re- 
fusing of  the  instructions,  the  jury  having  been  left  to  deter- 
mine what  would  be  a  valuable  consideration,  and  the  words 
"at  a* price  and  on  terms  acceptable  to  defendant"  being  su- 
perfluous and  probably  misleading.  Harrison  v.  Houston  (Tex. 
Civ.  App.    '06),  91  S.  W.  647. 

Sec.  1008,  Instruction  properly  refused  which  ignored  plain- 
tiff's theory  of  cause  of  sale. 
In  an  action  by  a  real  estate  broker  for  his  commissions  in 
securing  a  purchaser,  an  instruction  is  properly  refused  which 
ignores  plaintiff's  theory  that  the  efficient  cause  of  the  sale 
was  the  vendor's  representative  acting  with  him  and  accepting 
his  services,  with  knowledge  of  his  occupation,  although  such 
representative  may  have  acted  with  other  agents  in  some  mat- 
ters respecting  the  sale.  J.  P.  Wafkins  Land  &  Mtg.  Co.  v. 
Thetford    (Tex.   Civ.   App.    '06),  96   S.  W.  72. 

Sec.  1009.    Instruction  properly  refused  that  broker  to  earn 
commissions  must  notify  his  principal. 

Where,  in  an  action  for  a  division  of  a  broker's  commissions, 
the  contract  between  the  parties  provided  that  if  plaintiff  would 
"assist"  in  obtaining  a  purchaser  ho  should  be  entitled  to  one- 
half  the  commissions  earned,  an  instruction  that  unless  the 
person  claiming  the  commissions  find  such  purchaser  and  com- 
municate the  fact-  to  the  other  party  at  the  time,  he  can  not 
recover,  was  properly  refused.  McClear])  v.  Willis,  35  Wash. 
676,  77  P.  1073. 

Sec.  1009a.    Failure  to  instruct  as  to  notice  held  not  error. 

In  an  action  for  a  commission  on  a  sale  of  land,  an  offer  to 
show  that  there  was  a  supplemental  contract,  and  that  by  an 
oversight,  mistake  or  fraud,  a  stipulation  that  plaintiff's  right 


574  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

to  sell  the  land  should  expire  at  a  time  which  had  passed,  was 
omitted  from  the  writing,  contains  no  offer  to  prove  notice  of 
revocation  of  plaintiff's  right,  and  a  failure  to  instruct  as  to 
what  constitutes  such  notice  is  not  error.  Hoffner  v.  Cham- 
bers, 121  Pa.  St.  84,  15  A.  492. 

Sec.  1010.    Instruction  erroneous  that  commission  was  not  to 
be  paid  unless  sale  consummated. 

In  an  action  by  a  real  estate  broker  for  commissions,  it  ap- 
peared that  the  owner  authorized  plaintiff  to  sell  certain  real 
estate  for  -$41,000,  agreeing  to  pay  a  commission;  plaintiff 
claimed  the  making  of  a  verbal  modification  to  the  effect  that 
he  should  receive  the  commission,  without  regard  to  price,  which 
modification  is  denied;  a  contract  was  introduced  in  evidence 
between  the  owner  and  another  for  a  sale  for  $40,000,  but  it 
was  claimed  that  certain  interlineations  in  the  contract  were 
made  after  it  had  been  signed  by  the  owner,  and  that  he  never 
agreed  to  it  in  its  altered  condition;  there  was  also  evidence 
that  plaintiff  procured  a  purchaser  for  $42,000,  but  the  owner 
refused  to  perform.  Held,  that  it  was  error  to  instruct  that  the 
commission  was  not  to  be  paid  unless  the  sale  was  consum- 
mated, and  that  the  risk  of  failure  was  wholly  on  the  broker. 
Bruce  v.  Hurlhut,  81  N.  Y.  S.  54,  81  App.  Div.  311.  See  also 
Sec.  969. 

Sec.  1011.    Instruction  that  if  broker  changed  contract  believ- 
ing defendant  would  see  before  signing,  not  prejudicial 
to  plaintiff. 
In  an  action  for  broker's  commissions,  an  instruction  that 
if  the  broker  caused  a  change  to  be  made  in  the  contract,  be- 
lieving that  defendant  would  see  the  change  when  the  contract 
was  delivered  to  him,  then  the  defense  of  fraud  on  the  part 
of  the  broker  in  so  changing  the  contract  was  not  sufficiently 
established  to  defeat  plaintiff's  claim  for  commissions,  was  not 
prejudicial  to  plaintiff.     Robertson  v.    Vasey,  125   Iowa,  526, 
101  N.  W.  271. 

Sec.  1012.    Instruction  that  to  entitle  him  to  commissions  the 
broker  must  have  acted  in  good  faith,  is  proper. 

Where  the  evidence  tended  to  show  an  interest  on  the  part 
of  a  real  estate  broker  in  the  contract  of  purchase,  an  instruc- 


PLEADINGS,  PRACTICE,  ETC.  575 

tion  that  to  entitle  him  to  commissions  he  must  have  acted 
in  good  faith  and  in  the  interest  of  his  employer.  Held,  not 
erroneous.     Buck  v.  Eogehoom,  125  Neb.  526,  90  N.  W.  635. 

Sec.  1013.     Instruction,  in  answer  to  question  by  foreman,  that 
jury  not  bound  by  any  rule  in  fixing  damages,  error. 

In  an  action  by  a  real  estate  broker  for  commissions,  it  was 
error  to  tell  the  jury,  in  answer  to  a  question  by  their  fore- 
man, that  they  were  not  bound  by  any  rule  in  fixing  damages, 
as  the  court  should  have  charged  them  that  the  rule  was  the 
customary  commissions  in  such  cases,  or,  if  the  evidence  was 
insufficient  on  that  question,  what  would  be  a  fair  compensa- 
tion.   Hartman  v.  Warner,  75  Conn,  197,  52  A.  719. 

Sec.   1014.     Instruction   proper,  that   if  plaintiff  entitled  to 
commissions,  jury  should  determine  their  value. 

In  an  action  for  a  broker's  services,  it  was  proved  that  the 
value  of  plaintiff's  services  for  furnishing  a  purchaser  of  the 
land  was  one  dollar  per  acre,  and  that  it  was  worth  the  same 
for  "selling;"  defendant's  answer  admitted  plaintiff's  services 
in  "selling"  the  land,  and  the  case  was  tried  on  the  theory 
that  the  services  in  "selling"  or  "furnishing  a  purchaser" 
were  the  same.  Held,  that  the  court  did  not  err  in  charging 
that,  if  the  jury  found  the  plaintiff  was  entitled  to  a  com- 
mission for  services  in  "selling"  the  land,  it  should  determine 
the  value  thereof.  Wallick  v.  Lynch  (Iowa  Sup.  '06),  106  N. 
W.  617. 

Sec.  1015.  Instruction  rightly  refused,  that  if  entitled  to  any- 
thing broker  confined  to  a  quantum  meruit. 
In  an  action  for  services  as  a  broker  in  procuring  defend- 
ant a  contract  to  purchase  land,  a  request  for  a  ruling  that 
the  plaintiff  could  not  recover  more  than  a  quantum  meruit  for 
his  services  as  a  broker,  if  entitled  to  recover  anything,  was 
held  rightly  refused,  as  it  assumed  that  plaintiff  had  been 
acting  as  a  broker,  while  the  question  whether  he  had  been  so 
acting  or  not  was  in  issue,  and  as  it  disregarded  the  plaintiff's 
claim  that  there  was  a  special  agreement  between  [the  defend- 


576  AMERICAN    LAW   REAL   ESTATE   AGENCY, 

ant  and   himself,   of  which  there  was   evidence   for  the  jury. 
Graves  v.  Dill  159  Mass.  74,  34  N.  E.  336. 

Sec.  1015a.    Instruction  held  properly  refused. 

An  instruction  that  a  real  estate  agent  is  not  entitled  to 
recover  for  his  services  if  he  failed  to  accomplish  the  sale, 
and  the  vendee  was  induced  to  reconsider  his  resolution  and 
purchase  by  another  agent,  notwithstanding  the  vendee  might 
never  have  looked  at  the  property  or  thought  of  buying  it  but 
for  plaintiff,  "as  his  agency  was  not  the  immediate  and  effi- 
cient cause  of  the  sale,"  was  properly  refused,  where  there 
was  no  evidence  that  another  agent  was  instrumental  in  ef- 
fecting the  sale,  and  also,  because  the  jury  were  likely  to  mis- 
understand the  last  clause,  and  regard  it  as  an  independent 
part  of  the  instruction.    Solomon  v.  Cress,  29  P.  439,  22  Or.  177. 

Sec.  1016.    Instruction  authorizing  recovery  upon  either  of  two 
hypotheses,  not  in  conflict. 

In  an  action  for  a  broker's  commissions  against  stockhold- 
ers of  a  brewing  company  for  a  sale  of  its  property,  where 
the  evidence  showed  that  the  debts  of  the  company  were  about 
$30,000,  that  the  purchasers  assumed  this  indebtedness,  reliev- 
ing defendants  from  any  liability  thereon,  and  that  by  the 
written  contract  of  sale  the  purchasers  relieved  defendants  of 
all  personal  liability  on  the  obligations  of  the  company,  not 
to  exceed  $30,000,  there  was  no  conflict  between  instructions 
authorizing  a  recovery  of  ten  per  cent,  of  the  debts  of  the  com- 
pany from  which  the  defendants  were  to  be  relieved  as  sure- 
ties, and  one  authorizing  a  recovery  of  ten  per  cent,  of  the 
debts  of  every  kind  of  the  company.  Morgan  v.  Keller,  194 
Mo.  663,  92  S.  W.  75. 

Sec.  1017.    Instruction  proper,  where  some  sales  are  admitted, 
to  award  commissions,  though  no  contract  be  proved. 

"Where  plaintiff  alleged  a  contract  for  commissions  and  sales 
made  thereunder,  and  defendant  denied  the  contract,  but  ad- 
mitted some  of  the  sales  and  that  he  was  indebted  to  plaintiff 
in  a  reasonable  sum  for  commissions  thereon,  an  instruction 
that,  if  the  jury  did  not  find  that  there  was  a  contract,  then 


PLEADINGS,  PRACTICE,  ETC.  577 

they  should  award  plaintiff  reasonable  commissions,  was  proper, 
such  issue  being  raised  by  defendant.  Wheeler  v.  Buck,  23 
Wash.  679,  63  P.  566. 

Sec.  1018.  Instruction  that  if  sales  were  made  within  con- 
tract to  pay  commissions  to  plaintiff,  is  suflBciently 
definite. 

In  an  action  for  a  broker 's  commissions,  the  court 's  charge, 
that  if  the  purchasers  went  to  South  Dakota,  by  reason  of 
plaintiff's  introduction  to  defendant,  and  examined  the  lands 
defendant  had  for  sale,  and  if  defendant  participated  in  the 
business  resulting  in  sales,  then  the  sales  were  made  by  defend- 
ant within  his  contract  to  pay  to  plaintiff,  was  a  sufficiently 
definite  instruction  on  the  issue,  of  the  manner  in  which  de- 
fendant must  have  sold  the  land  in  order  to  render  himself 
liable.    Murphy  v.  Ililthridle,  132  Iowa,  114,  109  N.  W.  471. 


Sec.  1019.     Instruction  erroneous,  as  question  of  broker's  au- 
thority was  for  the  jury. 

Where  a  fruit  farm  was  listed  for  sale  with  a  real  estate 
agent,  who,  in  turn,  listed  it  with  another  agent,  and  there 
was  evidence  tending  to  show  authority  of  the  latter  to  make 
representations  relating  to  the  farm,  the  court  should  not  have 
instructed  that  the  owner  was  bound  by  representations  made 
by  him,  but  should  have  submitted  the  question  of  his  authority 
to  the  jury.  Matler  v.  Jeffries,  145  Mich.  598,  108  N.  W.  994, 
13  D.  L.  N.  600. 

Sec.  1019a.    Instruction  erroneous  that  invades  the  province  of 
the  jury. 

An  instruction  in  an  action  for  commissiorte  for  selling  land 
selecting  language  that  the  parties  used,  that  might  be  evidence 
of  the  annulment  of  a  contract,  and  informing  the  jury  of  its 
probative  effect,  would  have  been  on  the  weight  of  the  evidence, 
and  an  invasion  of  the  province  of  the  jury.  Mumme  v.  Gates 
(Tex.  Civ.  App.  '09),  120  S.  W.  1046. 


578  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  1020.  Instruction  where  contract  was  for  sale  to  certain 
party,  which  failed,  plaintiff  could  not  recover. 
There  being  evidence  that  defendant  only  contracted  with 
plaintiff  with  reference  to  a  sale  to  a  certain  party,  which  sale 
fell  through,  defendant  was  entitled  to  a  charge  that  plaintiff 
could  not  recover  if  the  contract  was  so  limited.  Wefel  v. 
Stillman,  151  xVla.  249,  44  S.  203. 

Sec.  1021     Instruction  erroneous,  which  relied  on  usage,   in 
not  requiring  the  jury  to  find  the  existence  thereof. 

In  an  action  by  a  real  estate  broker  for  commissions  for  sell- 
ing a  leasehold,  plaintiff's  prayer  for  an  instruction  which 
relied  on  usage  and  custom  to  fix  the  amount  to  which  he  was 
entitled,  was  erroneous  in  not  requiring  the  jury  to  find  the 
existence  of  a  uniform  and  notorious  custom  regulating  the 
compensation  of  agents  making  sales  of  leaseholds.  Groscup  v, 
Downey,  105  Md.  273,  65  A.  930. 

Sec.  1022.     Instruction  erroneous,  that  because  husband  had 
charge  of  real  estate,  had  authority  to  employ  a  broker. 

In  an  action  for  commissions  for  selling  real  estate,  an  in- 
struction that  if  defendant's  husband  "was  agent  in  charge  of 
said  property,  and  for  the  sale  of  the  same,  and  defendant's 
said  agent  employed  plaintiff"  to  procure  a  purchaser,  and 
the  property  was  sold  by  defendant  to  a  purchaser  procured  by 
plaintiff,  he  was  entitled  to  recover,  was  erroneous,  in  that  it  in 
effect  instructed  the  jury,  as  a  matter  of  law,  that  if  defend- 
ant's husband  was  the  agent  in  charge  of  said  property  and 
for  the  sale  of  the  same,  he  had  authority  to  employ  another 
to  procure  a  purchaser.     Id.     See  also  Sec.  39. 

Sec.  1023.     Instruction  properly  refused,   to  find  for  plaintiff, 
where  liability  of  defendant  was  for  the  jury. 

An  instruction  requested  by  plaintiffs,  in  an  action  by  real 
estate  agents  for  commissions,  that,  though  the  jury  find  it  was 
agreed  between  plaintiffs  and  defendants  that  commissions 
should  not  be  paid  unless  defendants  actually  traded  a  cer- 
tain building  for  a  ranch  controlled  by  plaintiffs  and  passed 
title,  yet  if  they  find  that  it  was  the  act  of  defendants  which 


PLEADINGS,   PRACTICE,   ETC.  579 

prevented  the  exchange  being  made,  they  should  find  for  plain-, 
tiffs,  they  having  procured  a  person  ready  and  able  to  make 
such  trade  on  terms  satisfactory  to  defendants,  is  properly  re- 
fused as  misleading,  it  being  conceded  that,  as  between  defend- 
ants and  the  owners  of  the  ranch,  it  was  the  act  of  defendants 
which  prevented  the  exchange  being  made,  and  there  being  evi- 
dence that  the  act  was  compelled  against  the  wishes  of  defend- 
ants by  circumstances  which  they  could  not  avoid,  and  which, 
under  the  contract  of  employment  was  sufficient  to  absolve  them 
from  liability  for  the  commissions,  Rieger  v.  Merrill,  125  Mo. 
App.  541,  102  S.  W.  1072.     See  also  Sec.  125. 

Sec.  1024.    Instruction  to  find  for  one  of  competing  brokers  is 
correct,  even  though  he  did  not  close  the  trade. 

An  instruction,  at  defendant's  request,  in  an  action  to  deter- 
mine which  of  two  real  estate  brokers  was  entitled  to  the  com- 
missions for  selling  land,  that  where  real  estate  was  listed  for 
sale  with  several  real  estate  agents  acting  independently,  the 
one  who  succeeded  in  bringing  about  a  contract  between  the 
seller  and  the  purchaser  was  the  one  who  earned  the  commis- 
sions, regardless  of  the  fact  that  some  other  real  estate  men  may 
have  introduced  the  purchaser  to  the  seller,  if  error,  as  excluding 
the  theory  that  the  broker  who  is  the  procuring  cause  of  the 
sale  is  entitled  to  the  commission,  did  not  constitute  a  reversible 
error,  where  instructions  were  given  in  plaintiff's  behalf,  that  if 
the  purchaser  of  the  land  had  it  first  brought  to  his  notice  by 
plaintiffs,  who,  at  his  solicitation,  disclosed  the  owner's  name, 
and  the  information  received  from  plaintiffs  was  the  primary 
cause  of  the  purchaser  afterward  buying  the  land,  then  plain- 
tiffs were  entitled  to  recover,  even  though  defendants  showed 
the  purchaser  the  land  and  assisted  in  closing  the  trade,  and 
that  if  the  purchaser  promised  plaintiffs  to  take  it,  if  it  suited, 
before  defendants  brought  the  land  to  the  purchaser's  notice, 
and  the  owner  was  notified  by  the  plaintiffs  of  that  fact,  and 
the  defendants  afterwards  took  the  purchaser  to  show  him  the 
land,  then  plaintiffs  were  entitled  to  recover,  even  though  they 
did  not  close  the  trade  for  the  land.  Painter  v.  Ktlgore  (Tex. 
Civ.  App.  '07),  101  S.  W.  809;  Smith  v.  Sharp  (Ala.  Sup.  '09), 
50  S.  381.    See  also  See.  446. 


580  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  1025.  Instruction  erroneous,  as  to  reservation  in  deed  of 
mineral  deposits. 
Error  in  the  instruction  on  a  contract  to  procure  a  purchaser 
for  defendant's  land,  wherein  plaintiff  contended  that  he  found 
purchasers  and  that  the  sale  failed  solely  because  of  defendant's 
defective  title,  in  that  the  instruction  was  open  to  a  construction 
that,  from  the  fact  that  the  attorney  for  the  purchasers  saw 
the  deed,  it  was  conclusively  established  that  the  purchasers 
knew  the  reservation  therein  of  marl  mineral  and  gas  deposits, 
was  not  cured  by  undisputed  testimony  that  plaintiff  stated  to 
the  purchasers,  or  one  of  them,  that  defendant  would  reserve 
the  mineral  deposits,  or  by  the  further  instruction  that  plaintiff 
must  prove  that  the  purchasers  knew  about  and  consented  to 
the  reservation.  Weaver  v.  Richards,  150  ]\Iich.  20,  113  N.  W. 
867,  14  D.  L.  N.  617,  120  N.  W.  818,  16  D.  L.  N.  117. 

Sec.  1026.    Instruction  assuming  absence  of  special  contract 
and  existence  of  custom,  erroneous. 

In  an  action  of  assumpsit  for  brokerage  commissions,  an 
instruction  assuming  the  absence  of  a  special  contract  and 
the  existence  of  an  established  custom  as  to  commissions,  is 
erroneous,  the  fact  of  the  existence  of  such  custom  being  one 
which  should  be  submitted  to  the  jury  under  proper  instructions. 
Cobb  V.  Dunlevie,  63  W.  Va.  398,  60  S.  E.  384. 

Sec.  1027.    Instruction  that  plaintiff  was  employed  to  super- 
vise erroneous,  as  ignoring  the  defense. 

Where  plaintiff,  an  architect,  about  to  supervise  the  erection 
of  a  building,  advised  defendant  to  have  his  adjoining  building 
underpinned  before  excavations  for  the  new  building  began,  and 
thereupon  defendant  agreed  with  a  contractor  that  the  latter, 
for  a  specific  sum  should,  under  plaintiff's  supervision,  underpin 
defendant's  wall,  and  defendant  and  a  witness  testified  that 
the  specified  sum  was  to  cover  the  entire  cost  of  the  work  and 
tliat  plaintiff  agreed  to  charge  nothing  for  his  supervision,  an 
instruction  that  by  the  contract  plaintiff  was  employed  by  de- 
fendant to  super^ase  the  contractor's  work,  was  erroneous,  as 
ignoring  the  defense,  as  plaintiff  may  have  been  working  for 


PLEADINGS,  PRACTICE,  ETC.  581 

compensation  or  giving  his  services  gratuitously  because  of  his 
interest  in  the  adjoining  property.  Kirchner  v.  Concord  Inv. 
Co.,  127  Mo.  App.  262,  104  S.  W.  1127. 

Sec.  1028.     Instruction  ignoring  whether  plaintiff's  efforts  had 
ceased  or  his  agency  revoked,  error. 

Where,  in  an  action  for  a  broker's  commissions,  there  was 
evidence  that  plaintiff's  agency  had  been  revoked  before  defend- 
ant began  negotiations  with  the  purchaser,  while  plaintiff's 
evidence  indicated  that  such  revocation  was  made  with  knowl- 
edge that  it  was  through  plaintiff's  efforts  the  pur'^hase  was 
made,  an  instruction  ignoring  the  question  whether  plaintiff's 
alleged  efforts  to  sell  the  land  had  not  been  abandoned  or  his 
agency  revoked  before  defendant  and  the  purchaser  met,  was 
erroneous.  Christian  v.  McDonnell,  127  Mo.  App.  630,  106  S. 
W.  1104. 

Sec.  1028a.     Not  error  for  the  court  to  charge  that  if  sale  made 
to  broker's  customer  after  he  abandoned  negotiations  he 
was  not  entitled  to  commissions. 
In  an  action  by  a  broker  for  commissions,  the  court  did  not 
err,  as  against  the  owner,  in  modifying  an  instruction  requested 
by  him;  that  the  broker  could  not  recover  if  he  did  not  agree 
on  the  terms  of  sale  with  the  one  who  purchased  from  the  owner, 
though  the  broker  procured  the  sale,  by  adding  that  he  could 
not  recover  if  the  sale  was  made  after  he  abandoned  the  negotia- 
tions or  the  person  with  whom  he  was  negotiating  declined  to 
purchase.     Stiewel  v.  Lally,  89  Ark.  195,  115  S.  W.  1134. 

Sec.  1029.  Instruction  to  find  for  architect,  if  claim  believed, 
erroneous  for  not  submitting  defendant's  claim. 
Where,  in  an  action  by  an  architect,  he  alleged  that  tlie 
owner  was  to  pay  for  superintending  five  per  cent,  of  the 
lowest  bid,  which  was  $6,150,  and  the  owner  alleged  that  he 
was  only  to  pay,  provided  a  contractor  was  procured  to  erect 
the  building  for  $4,000,  and  there  was  evidence  that  the  lowest 
bid  was  a  little  over  $5,000,  an  instruction  authorizing  a  verdict 
for  the  amount  sued  for,  if  the  jury  believed  the  architect's 


582  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

claim,  was  erroneous,  as  withdrawing  from  the  jury  the  question 
of  the  amount  of  the  lowest  bid.  Loftus  v.  Green  (Tex.  Civ. 
App.  '07),  104  S.  W.  396. 

Sec.  1030.    Instruction  that  though  terms  unauthorized,  find 
defendant  ratified  contract,  correct. 

In  an  action  to  recover  a  commission  for  finding  a  purchaser 
for  land,  an  instruction  that  if  the  terms  of  the  contract  made 
by  the  brokers  with  the  proposed  purchaser  were  unauthorized 
by  defendant,  before  recovery  could  be  had  against  him,  the 
jury  must  find  that  he  ratified  the  contract  with  full  knowledge 
of  the  facts  and  its  terms,  was  not  objectionable  as  being  on  the 
weight  of  the  evidence.  Sterling  v.  DeLaune  (Tex.  Civ. 
App.  '07),  105  S.  W.  1169. 

Sec.  1031.    Instruction  properly  refused  that  if  owner  believed 
relations  with  broker  ended,  latter  could  not  recover. 

Where  a  land  owner  employed  a  broker  to  sell  certain  land 
and  thereafter,  while  the  broker  was  negotiating  with  a  prospec- 
tive purchaser,  the  landlord  asked  him  to  make  no  further 
efforts  to  sell  the  land  since  the  land  owner's  wife  would  not 
join  him  in  executing  the  deed,  to  which  the  broker  replied, 
"All  right,"  and  directly  afterward  the  land  owner  sold  the 
land  to  a  purchaser  secured  by  the  broker,  the  court,  in  an 
action  by  the  broker  for  his  commissions,  properly  refused  an 
instruction  that  if  the  broker  induced  the  land  owner  to  believe 
that  the  relation  between  them  was  terminated  and  the  land 
owner  acted  upon  such  belief  in  making  the  sale  contract,  the 
broker  could  not  recover.  Branch  v.  Moore,  84  Ark.  462,  105 
S.  W.  1178. 

Sec.  1032.    Instruction  fully  submitted  two. contentions  as  to 
the  right  of  plaintiff  to  commissions. 

Prayers  in  an  action  by  a  real  estate  broker  to  recover  from 
other  brokers  for  a  commission  received  by  them  from  the  sale 
of  a  lot  that  if  the  court  found  that  there  was  no  agreement  to 
make  any  division  of  the  commissions  then  the  verdict  must 
be  for  plaintiff,  whether  or  not  plaintiff  was  a  licensed  real 


PLEADINGS,  PRACTICE,  ETC.  583 

estate  broker,  and  that  if  plaintiff  introduced  the  purchaser  to 
defendants  or  those  for  whom  they  acted,  and  gave  defendants 
notice  of  the  negotiations  between  plaintiff  and  the  subsequent 
purchaser  and  a  sale  was  made  to  such  purchaser  as  the  result 
of  the  introduction  by  plaintiff,  the  verdict  must  be  for  plaintiff, 
and  that  if  a  sale  was  made  through  the  bringing  of  the  parties 
together  by  plaintiff  then  plaintiff  was  entitled  to  recover,  even 
though  the  sale  may  have  been  effected  by  a  direct  agreement 
between  the  defendant  and  the  purchaser,  fully  submitted  the 
two  contentions  of  plaintiff  that  there  was  an  express  agreement 
to  divide  the  commissions,  and  that  if  there  was  no  express 
agreement  plaintiff  was  the  procuring  cause  of  the  sale  made. 
Walker  v.  Baldwin,  106  Md.  619,  68  A.  25. 

Sec.  1033.    Instruction  properly  refused,  that  if  plaintiff  knew 
defendant  had  only  an  option,  he  could  not  recover. 

In  an  action  on  a  contract  to  procure  a  purchaser  for  de- 
fendant's land  plaintiff  contended  that  he  found  a  purchaser 
and  that  the  sale  was  not  consummated  solely  because  of  de- 
fendant's defective  title;  defendant  testified  that  he  at  one 
time  told  plaintiff  he  had  only  an  option,  and  that  plaintiff 
requested  him,  whenever  he  thought  the  title  all  right,  to  give 
him  a  chance  to  buy;  afterwards  defendant  received  a  deed  for 
the  land,  and  he  tendered  a  warranty  deed  thereof  to  the  pur- 
chasers. Held,  that  it  was  not  error  to  refuse  an  instruction 
that  if  plaintiff  knew  that  defendant  had  only  an  option  and 
that,  under  the  agreement,  a  sale  was  to  be  made  by  plaintiff 
at  not  less  than  a  specified  amount  and  that  his  commission  was 
to  be  all  above  that  amount,  plaintiff  could  not  recover.  Weaver 
V.  Richards,  150  ^lich.  20,  113  N.  W.  867,  14  D.  L.  N.  617. 

Sec.  1034.    Instruction  that  plaintiff  found  purchaser  ready, 
able  and  willing,  erroneous  on  that  theory. 

In  an  action  for  commissions  for  the  sale  of  a  lease,  where 
the  petition  alleged  that  plaintiff  negotiated  the  sale  of  a  lease, 
and  after  reaching  an  agreement  whereby  the  purchaser,  agree- 
ing to  pay  a  certain  price  for  the  lease,  the  purchaser  paid  that 
amount  to  the  defendant,  an  instruction  based  on  the  theory 


584  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

that  plaintiff  had  found  a  purchaser  ready,  willing  and  able  to 
buy  the  lease  and  brought  him  into  communication  with  de- 
fendant, is  erroneous  because  outside  the  scope  of  the  petition. 
Northup  V.  Diggs,  128  Mo.  App.  217,  106  S.  W.  1123. 

Sec.  1035.  Instruction  against  S.  erroneous,  as  he  was  not 
liable  in  the  absence  of  the  agreement  alleged. 

In  an  action  on  an  agreement  of  defendant  and  one  S.  to 
pay  plaintiffs  a  certain  commission  for  negotiating  an  exchange 
of  their  properties,  which  agreement  provided  for  payment  of 
the  commissions  on  both  sides,  if  either  party  should  refuse  to 
carry  out  the  exchange  contract,  and  it  appeared  that  defendant 
had  defaulted  although  S.  was  ^  ready,  able  and  willing  to  per- 
form, it  was  error  to  charge  that  if  there  was  a  breach  or 
alleged  breach  by  defendant  of  the  agreement  to  exchange,  plain- 
tiffs had  a  cause  of  action  against  S.  for  his  proportion  of  the 
commissions,  since,  as  he  was  ready,  able  and  willing  to  carry 
out  the  contract  he  was  not  liable  for  commissions  in  the  absence 
of  the  agreement  alleged.  Goodman  v.  Linetzky,  107  N.  Y,  S.  50. 
For  the  same  reason  it  was  error  to  charge  that  irrespective  of 
the  agreement  as  to  the  payment  of  the  commissions,  plaintiffs 
had  a  cause  of  action  against  S.  for  his  proportion  of  the  com- 
missions.   Id. 

Sec.  1036.  Error  not  to  give  instruction  that  if  broker  knew 
consent  of  third  person  necessary  for  binding  contract,  he 
could  not  recover. 

In  an  action  for  commissions  for  procuring  a  purchaser  of 
real  estate,  the  defendant  claimed  that  he  was  a  joint  owner  with 
a  third  person,  that  the  broker  knew  that  the  third  person's 
consent  to  a  conveyance  was  necessary,  and  that  the  third 
person  refused  to  give  his  consent;  and  the  court  presented 
defendant's  theory  as  a  denial  that  plaintiff  produced  a  pur- 
chaser ready,  able  and  willing  to  purchase  on  terms  satisfactory 
to  defendant,  tlie  refusal  to  charge  that  if  the  broker  knew  that 
the  consent  of  the  third  person  was  necessary  before  defendant 
could  enter  into  a  binding  contract,  and  his  consent  could  not 
be  obtained,  plaintiff  was  not  entitled  to  a  commission,   was 


PLEADINGS,  PRACTICE,  ETC.  585 

reversible  error,  though  the  court  stated  that  he  would  leave 
the  matter  to  the  jury  to  take  into  consideration  in  arriving  at 
the  fact.    Jacohson  v.  Fraade,  307  N.  Y.  S.  706,  56  Misc.  631. 

Sec.  1037.  Instruction  for  plaintiff  erroneous,  where  evidence 
shows  absence  of  license. 
In  an  action  to  recover  commissions  on  a  sale  or  exchange 
of  real  estate,  where  the  plaintiff  describes  himself  in  his  state- 
ment of  claim  ''as  a  dealer  in  real  and  personal  property  and 
in  the  regular  course  of  business"  made  the  sale  or  exchange  in 
question,  and  it  is  admitted  that  plaintiff  had  not  taken  out  a 
license  as  required  by  law,  the  statement  of  claim  is  admissible 
as  evidence  tending  to  show  that  the  plaintiff  is  a  real  estate 
broker,  and  where  the  statement  is  supported  by  the  evidence  of 
two  witnesses  called  by  the  defendant  it  is  error  for  the  court 
to  give  binding  instructions  for  plaintiff.  Sprague  v.  Reilly,  34 
Pa.  Super.  Ct.  332. 

Sec.  1038.     Instruction  properly  refused  as  assuming  for  plain- 
tiff, without  hypothesising  belief  on  the  evidence. 

In  an  action  for  a  broker's  commissions,  an  instruction  that 
plaintiff  was  entitled  to  a  verdict  for  such  damages  as  the  jury 
believe  from- the  evidence  he  has  sustained  from  defendant's 
breach  of  contract  was  properly  refused  as  assuming  and  in- 
structing a  finding  for  plaintiff'  without  hypothesising  the  belief 
on  the  evidence  by  the  jury.  Green  v.  Brady,  152  Ala.  507, 
44  S.  408.     See  also  Sec.  949. 

Sec.  1039.  Instruction  not  objectionable  as  minimizing  the 
issue  of  alteration  of  contract. 
"Where,  in  an  action  on  a  written  contract  employing  plaintiff 
as  a  broker  to  sell  defendant's  land,  defendant  pleaded  that  the 
contract  had  been  altered  and  also  denied  that  the  plaintiff 
had  secured  a  purchaser,  an  instruction  that  certain  evidence 
was  admissible  as  bearing  on  ''the  real  testimony  in  this  case," 
to-wit,  wliether  plaintiff  had  furnished  a  buyer,  was  not 
objectionable  as  minimizing  the  issue  of  alteration  in  view  of 
other  instructions  directly  stating  that  if  the  jury  find  the  con- 


586  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

tract  has  been  altered  they  must  find  for  defendant.  McDermott 
V.  Mahoney  (Iowa  Sup.  '06),  106  N.  W.  925.  See  also  Sees.  55, 
73,  293. 

Sec.  1040.  Instruction  caused  no  prejudice  to  defendant  when 
jury  found  no  excess  money  was  paid. 
In  an  action  for  commissions  agreed  to  be  paid  per  acre  in  a 
sale  of  property,  instructions  relating  to  plaintiff's  claim  to  the 
excess  of  purchase  money  above  a  named  sum  cannot  have 
prejudiced  defendant  when  the  .jury  expressly  found  that  no 
purchase  money  was  received  in  excess  of  that  sum.  Wilson  v. 
Everitt,  139  U.  S.  616,  11  Sup.  Ct.  664;  Gaume  v.  Horgan,  122 
Mo.  App.  700,  99  S.  W.  457. 

Sec.  1040a.    When  not  error  to  omit  to  charge  as  to  respon- 
sibility of  purchaser. 

"Where,  in  an  action  by  a  broker  for  commissions  for  procuring 
a  purchaser  of  land,  the  evidence  showed  that  the  sale  was 
consummated  on  the  terms  proposed  by  the  owner,  it  was  not 
error  to  omit  to  charge  that  the  proof  must  show  that  the 
purchaser  procured  was  able,  ready  and  willing  to  complete  the 
purchase  on  the  terms  prescribed.  Lewis  v.  Susmilch,  130  Iowa, 
203,  106  S.  W.  624. 

Sec.  1041.  Instruction  not  inconsistent  with  terms  of  contract 
in  securing  title,  etc. 
In  an  action  for  commissions  under  a  contract  by  which 
plaintiff  was  employed  to  assist  defendant  in  acquiring  a  title 
to  property  for  the  purpose  of  effecting  a  consolidation  of  it 
with  other  property,  a  charge  that  plaintiff  could  not  recover 
if  the  defendants  were  unable  to  eft'ect  a  sale  with  the  owner, 
and  other  persons  in  co-operation  with  defendant  did  so  and 
effected  a  consolidation,  even  though  defendant  contributed  to 
the  purchase,  was  not  inconsistent  with  the  terms  of  the  contract, 
since  the  thing  contracted  to  be  done  was  the  securing  of  the 
title  to  the  property  and  the  making  of  the  consolidation  by 
plaintiff  and  not  by  another  person  unconnected  with  defendant. 
Bailey  v.  Carleton,  43  Colo.  4,  95  P.  542. 


PLEADINGS,  PRACTICE,  ETC.  587 

Sec.  1041a.    Charge  in  the  alternative  held  inconsistent. 

Where,  in  an  action  by  q  broker  for  commissions  for  pro- 
curing a  purchaser  of  real  estate  the  evidence  showed  that  he 
was  employed  to  procure  a  purchaser  willing  to  pay  $16,000, 
for  a  commission  of  whatever  was  obtained  in  excess  of  that 
sum,  that  he  procured  a  purchaser  willing  to  pay  $16,500  on 
condition  that  the  owner  should  pay  two  and  one-half  per  cent, 
thereof  to  the  purchaser's  agent  as  compensation  in  the  trans- 
action, and  that  the  owner  refused  to  convey,  an  instruction 
that  the  broker  could  recover  $500  and  an  instruction  that  he 
could  recover  the  difference  between  $16,000  and  the  sum  which 
the  purchaser  secured  by  him  was  willing  to  pay  for  the  prop- 
erty, were  inconsistent.  SlayJjacJc  v.  Wetzel  (Mo.  App.  '09), 
123  S.  W.  982. 


Sec.  1042.    Instruction  properly  refused  as  to  owner's  good 
faith,  where  no  evidence  tended  to  show  it. 

In  an  action  for  commissions  for  selling  real  estate  it  is  not 
error  to  refuse  to  submit  an  instruction  as  to  the  owner's  good 
faith  in  selling  the  real  estate  himself  without  regard  to  the 
agent  or  the  payment  of  commissions  where  there  is  no  evidence 
tending  to  show  good  faith  by  the  owner  in  dealing  with  the 
agent  with  reference  to  the  commission.  Church  v.  Dunham,  14 
Idaho,  776,  96  Pa.  203,  -205. 

Sec.  1043.     Instruction  erroneous  not  based  on  hypothesis  that 
jury  must  believe  as  contended  by  defendants. 

Where,  in  an  action  by  a  real  estate  broker  for  commissions, 
it  was  contended  by  him  that  he  did  not  bind  himself  to  sell 
the  property  or  to  furnish  a  purchaser,  as  contended  by  de- 
fendant, but  he  was  to  be  paid  if  he  simply  introduced  a  person 
to  whom  a  sale  should  be  subsequently  made  by  defendants,  an 
instruction  requested  by  defendants  applying  the  general  rule 
that  a  real  estate  broker  employed  to  sell  lands  must  bring 
about  a  sale  or  procure  a  purchaser  ready,  willing  and  able  to 
purchase,  not  based  on  the  hypothesis  that  the  jury  must  first 
believe  the  contract  to  be  as  contended  by  defendants,  was 


588  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

properly  refused.    Mayer  v.  McCann,  136  111.  App.  50,  affirmed 
in  McCann  v.  Mayer,  232  111.  507,  83  N.  E.  1042. 

Sec.  1044.    Instruction  to  find  for  defendant  properly  refused, 
where  plaintiflF's  evidence  is  uncontradicted. 

"Wliere,  in  an  action  on  a  contract  to  pay  a  real  estate  broker 
a  specified  commission  per  acre  on  wholesale  sales,  or  sales  of 
large  tracts,  to  persons  whom  he  introduced  and  who  subse- 
quently purchased,  the  broker  testified  to  the  contract  and  the 
performance  of  it  by  introducine:  a  person  who  afterwards 
purchased,  it  was  not  error  to  refuse  to  direct  a  verdict  for 
defendant,  as  his  (plaintiff's)  evidence,  standing  alone  and 
uncontradicted,  authorized  a  verdict  in  his  favor.     Id. 

Sec.  1044a.    Request  to  charge  for  defendant  properly  refused. 

The  court,  in  an  action  to  recover  commissions  for  procuring 
a  contract  for  defendant  with  one  D.  having  charged  that 
"plaintiff  can  not  have  commissions  from  both  sides;  it  is 
claimed  by  the  defendant  that  he  was  endeavoring  to  do  that ;  if 
that  were  true,  while  he  was  working  for  the  defendant  he 
can  n(5t  recover  in  this  action  at  all,  provided  you  believe  he 
was  entitled  to  get  a  commission  from  D.  as  well,"  there  was 
no  error  in  refusing  defendant's  request  for  a  charge  that  if,  at 
the  time  of  the  making  of  the  contract  between  plaintiff  and 
defendant  plaintiff  was  negotiating  with  D.  to  do  the  work 
himself,  the  jury  must  find  for  the  defendant.  Hume  v.  Flint, 
]1  N.  Y.  S.  431."^ 

Sec.  1045.    Instruction  as  to  the  value  of  land  received  in  ex- 
change misleading. 

In  an  action  for  a  broker's  commissions  where  it  was  con- 
ceded that  a  commission  of  five  per  cent,  was  agreed  on  by  the 
parties  and  the  evidence  as  to  the  value  of  defendant's  land 
and  of  that  which  he  received  in  exchange  was  conflicting,  a 
charge  imposing  as  a  condition  upon  defendant's  right  to 
succeed  that  he  did  not  make  a  contract  for  five  per  cent,  com- 
missions "as  above  explained"  (meaning  in  a  previous  portion 
of  the  charge),  and  that  defendant's  land  was  only  worth  $4,000 


PLEADINGS,    PRACTICE     ETC.  589 

or  less,  while  his  equity  in  the  land  he  received  in  exchange  was 
worth  only  about  $2,000  or  $3,000,  was  misleading  and  preju- 
dicial. Jameson  v.  Hutchison  (Tex.  Civ.  App.  '08),  109  S.  W. 
1096. 


Sec.  1046.    Instruction  properly  refused  to  give  verdict  for 
defendant,  where  suit  was  prematurely  brought. 

In  an  action  for  a  broker's  commissions  for  effecting  an 
exchange  of  property,  a  requested  charge  that  if  defendant 
agreed  to  pay  a  commission  on  a  sale  of  the  land  conveyed  to 
him  in  exchange  and  the  land  had  not  been  sold  the  jury  should 
find  for  the  defendant,  was  properly  refused,  since,  under  such 
circumstances,  they  should  find  for  defendant  without  prejudice 
to  sue  in  the  event  of  a  sale  of  the  land.     Id. 


Sec.  1046a.    Error  in  refusing  to  direct  a  verdict  for  defendant. 

In  an  action  by  a  real  estate  broker  against  the  owner  of 
real  estate  to  recover  a  commission  for  procuring  a  purchaser 
of  the  property,  with  whom  the  owner  makes  a  contract  of  sale, 
which  he  afterwards  refuses  to  consummate,  the  trial  court 
errs  in  refusing  to  direct  a  verdict  for  defendant  where  it 
appears  that  the  broker  originally  approached  the  owner  at  the 
suggestion  of  the  prospective  purchaser  for  the  sole  purpose  of 
getting  the  property  for  the  latter;  that  without  disclosing  the 
name  of  the  purchaser  to  the  owner  he  made  an  offer  for  the 
property  at  the  price  named  by  the  purchaser  which  was  less 
than  that  fixed  by  the  owner,  which  offer  the  owner  refused; 
that  his  explanation  of  his  many  subsequent  visits  to  the  owner 
which  resulted  in  a  contract  of  sale  at  the  original  price  fixed 
was  that  he  was  trying  to  get  the  property  for  the  purchaser; 
that,  accepting  his  statement  as  true  that  the  owner  employed 
him  to  act  as  his  agent  and  promised  to  pay  him  a  commission, 
he  tried  to  induce  the  owner  to  reduce  the  price  in  the  interest 
of  the  purchaser,  and  that,  according  to  his  own  statement,  he 
was  trying  to  get  the  property  as  cheap  as  he  could  for  the 
buyer.    Earten  v.  Loffler,  31  App.  D.  C.  362.    See  also  Sec.  314. 


590  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

Sec.  1047.  Instruction  erroneous,  that  jury  could  not  con- 
sider that  defendant  was  surety  on  plaintiff's  note. 
An  instruction,  in  an  action  for  a  real  estate  broker's  com- 
missions, that  the  jury  in  arriving  at  a  verdict  could  not  con- 
sider testimony  that  defendant  went  on  plaintiff's  note  as  surety, 
or  that  defendant  had  been  sued  on  the  note,  was  erroneous,  the 
testimony  being  relevant  to  the  issue  as  to  the  terms  of  the 
contract  between  the  parties.  Yates  v.  Brattam  (Tex.  Civ. 
App.  '08),  111  S.  W.  416. 

Sec.  1047a.     Court  upheld  in  peremtorily  instructing  jury  to 
find  for  defendant. 

Appellants,  real  estate  agents,  hearing  that  appellee,  who  was 
absent  from  the  State,  wished  to  sell  his  farm,  wrote  to  him 
that  they  had  a  purchaser  for  it,  asking  him  to  fix  his  lowest 
price  and  allowing  commissions.  Appellee  wrote,  naming  $225 
per  acre  as  his  lowest  net  price,  and  saying  "whatever  your 
price  is  for  selling  must  be  added  to  this. ' '  There  was  no  other 
correspondence  and  nothing  further  was  ever  said  by  appellants 
to  appellee  as  to  the  sale  of  the  farm.  Four  months  after  the 
passing  of  the  letters  appellee  sold  the  farm  for  $200  an  acre 
to  a  person  with  whom  appellants  were  negotiating  for  its  sale, 
but  with  M^hom  they  never  made  any  contract.  In  this  action 
by  appellants  against  appellee  to  recover  commissions  for  making 
the  sale.  Held,  that  upon  proof  of  the  facts  stated  the  court  did 
not  err  in  giving  peremptory  instructions  for  defendant;  as 
appellants  did  not  show  that  they  ever  procured  a  purchaser  on 
the  terms  named,  or  by  the  wrongful  act  of  appellee  to  have 
been  prevented  from  doing  so,  they  can  not  recover.  Hohbs  v. 
Miller,  14  Ky.  L.  R.  (abst.),  719.    Compare  Sec.  446. 

Sec.  1047b.     Instruction  that  sale  by  defendant  was  made  on 
day  prior  to  sale  by  plaintiff,  upheld. 

Before  plaintiff  reported  a  sale  of  the  property,  defendant, 
on  the  ninth  day  of  the  month,  through  another  agency,  signed 
a  written  agreement  for  a  sale  of  the  property  for  the  agreed 
consideration,  $1,000  to  be  paid  in  cash  on  delivery  of  the 
agreement  and  the  balance  on  delivery  of  the  deed,  with  abstract 


PLEADINGS,  PRACTICE,  ETC.  591 

showing  good  title.  The  vendee  almost  immediately  accepted 
the  proposition  in  writing  and  notice  was  immediately  given  to 
defendant  of  the  sale,  but  by  agreement  the  payment  of  the 
$1,000  was  deferred  until  the  next  morning.  At  about  nine 
o'clock  on  the  tenth,  plaintiff  sold  the  property  and  received 
part  payment  therefor  from  another  person.  The  vendee  under 
the  first  contract  met  defendant  at  the  appointed  hour  and  just 
as  the  deal  was  being  completed  plaintiff  appeared  with  his 
purchaser,  and  was  then,  for  the  first  time,  informed  of  the 
prior  sale.  Defendant,  in  an  action  on  the  contract,  testified 
that  the  agent  through  whom  the  sale  was  made  which  the  de- 
fendant accepted,  found  the  purchaser  and  sold  the  property 
before  the  plaintiff  made  a  sale.  Held,  that  the  sale  which  was 
accepted  by  defendant  was  made  on  the  day  prior  to  the  sale 
by  plaintiff,  and  an  instruction  to  that  effect  was  correct.  Tuffree 
V.  Bienford,  130  Towa,  532,  107  N.  W.  425. 

Sec.  1047c.     Charge  proper  that  unless  jury  find  contract  made 
on  day  alleged  must  find  for  defendant. 

Where,  in  an  action  by  a  broker  for  commissions  for  a  sale  of 
land,  the  petition  declared  on  a  verbal  contract  made  on  a  cer- 
tain day,  and  specifically  set  forth  the  terms  of  the  agreement 
and  its  performance  by  plaintiff,  an  instruction  that  unless  the 
jury  believe  that  defendant  expressly  employed  plaintiff  on  the 
day  named  as  his  agent  to  sell  the  land,  they  should  find  for 
defendant  was  proper.  Fortran  v.  Stoivers  (Tex.  Civ.  App. 
'08),  113  S.  W.  631.    Compare  Sec.  887. 

Sec.  1047d.    Modification  of  instruction  held  to  be  proper. 

In  an  action  for  broker's  commissions,  an  instruction  that 
"merely  procuring  a  purchaser  to  enter  into  a  contract  for  the 
purchase  of  property  does  not  entitle  a  broker  to  commissions, 
unless  such  persons  are  ready,  willing  and  able  to  make  the  pay- 
ments *  *  *  named  in  the  .contract,"  was  properly  modified 
by  adding,  "unless  the  seller  accepted  the  purchaser."  Fox  v. 
Ryan,  240  111.  391,  88  N.  E.  974, 


CHAPTER  XVII. 

SEcnois. 

1048-1053.  Findings  by  the  court. 

1054-1064.  Verdicts. 

1065-1071.  Judgments. 

Sec.  1048.    Finding  that  there  was  no  failure  of  consideration 
was  proper. 

Defendants  executed  two  notes  for  $385  in  payment  of  a  com- 
mission for  selling  land,  and  payable  only  in  the  event  that  the 
vendees  of  the  land  remained  on  it  for  one  year  and  made  im- 
provements equal  in  value  to  the  notes;  the  vendees  plowed  one 
hundred  acres  of  land,  which  increased  its  value  $2.50  per  acre 
erected  buildings,  and  constructed  drainage  worth  $75,  and  a 
levee  worth  $64;  but,  with  the  consent  of  the  defendants,  to 
whom  they  executed  a  reconveyance,  abandoned  the  premises 
before  the  expiration  of  a  year.  Held,  that  a  finding  that  there 
was  no  failure  of  consideration  for  the  notes,  was  proper.  Easton 
Packing  Co.  v.  Kennedy,  131  Cal.  xviii,  63  P.  130, 

Sec.  1049.    Finding  that  there  was  no  agreement  to  pay  plain- 
tiff five  per  cent,  commission  was  proper. 

In  an  action  by  a  broker  for  services,  the  complaint  was  on 
a  quantum  meruit,  alleging  performance  of  services  reasonably 
worth  a  certain  sum;  the  evidence  showed  that  plaintiff,  in  a 
conversation  between  himself  and  defendant,  had  stated  that  his 
commission  rate  was  five  per  cent.,  but  nothing  further  was  said 
either  at  that  time  or  at  the  time  of  the  plaintiff's  employment 
by  the  defendant  with  reference  to  commissions;  commissions  in 
general  were  shown  to  vary  from  three  to  five  per  cent,  depend- 
ing upon  the  amount  involved  and  the  circumstances.  Held,  that 
a  finding  that  there  was  no  agreement  to  pay  plaintiff  a  five 
per  cent,  commission  was  proper.  Burden  v.  Briquilet.  125  "Wis. 
341,  104  N.  W.  83. 
692 


PLEADINGS,  PRACTICE,  ETC.  593 

Sec.  1050.     Finding  for  plaintiff  on  one  count,  finding  against 
him  on  the  other. 

In  an  action  by  a  real  estate  broker  for  commissions,  the 
court's  finding  for  plaintiff  on  the  count  of  his  complaint  relying 
on  an  express  contract  was,  in  effect,  a  finding  against  him  on 
the  count  on  a  quantum  meruit.  Willard  v.  Carrigan,  8  Ariz.  70, 
68  P.  538. 

Sec.  1051.  Finding  that  plaintiff  kept  back  part  of  the  loan 
equal  to  amount  of  two  mortgages  was  error. 
Defendant  applied  to  a  real  estate  agent  for  a  mortgage  loan. 
Three*  unsatisfied  mortgages  were  to  be  paid  with  the  proceeds 
of  the  loan;  plaintiff  agreed  with  the  agent  to  make  the  loan, 
and  gave  the  agent  a  check  for  the  amount,  taking  a  mortgage 
on  the  property,  the  agent  assuring  him  that  he  would  search 
the  title  and  see  that  plaintiff  had  a  first  mortgage,  but  not 
informing  him  of  the  outstanding  incumbrances ;  on  execution  of 
the  mortgage,  defendant  instructed  the  agent  to  pay  off  the  three 
outstanding  mortgages  with  a  part  of  the  money  in  his  posses- 
sion; the  agent  paid  off  one  of  the  three  mortgages  only,  and 
appropriated  the  rest  of  the  money.  Held,  that  the  payment 
of  the  amount  of  the  loan  to  the  agent  was  a  payment  to  him 
as  agent  of  the  defendant,  and  a  finding  that  plaintiff  had  kept 
back  a  part  of  the  loan  equal  to  the  amount  of  the  two  mort- 
gages was  error.  Henker  v.  Sch wicker,  174  N.  Y.  298,  66  N. 
E.  971 ;  affirming  73  N.  Y.  S.  656,  67  A.  D.  196.    See  also  Sec.269. 

Sec.  1052.     Finding  did  not  entitle  plaintiff  to  recover. 

In  an  action  for  commissions  for  selling  land,  the  court  found 
that  plaintiff  sold  a  lot  and  was  paid  his  commissions;  that  the 
other  lots  were  sold  by  defendants  to  B.  avIio  sold  them  to  R. 
and  that  R.  paid  plaintiff  a  commission  therefor;  that  at  R.'s 
request,  as  a  matter  of  convenience,  for  certain  reasons,  B.  con 
veyed  the  lots  back  to  defendant,  who  then  conveyed  them  to 
R.,  but  defendant  in  nowise  made  itself  responsible  to  plaintiff 
for  any  commissions  on  the  sale.  Held,  that  under  the  finding 
plaintiff  was  not  entitled  to  recover.  Fortran  v.  South  End 
Land  Co.  (Tex.  Civ.  App.  '07),  105  S.  W.  323. 


594  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  1052a.    Finding  by  the  court  not  sustained  by  the  evi. 
dence. 

In  an  action  to  recover  commissions  earned  by  the  sale  of 
real  estate,  it  appeared  that  the  owner  gave  the  proposed  pur- 
chaser an  option  to  purchase  the  land  if  the  holder  of  a  prior 
existing  option  failed  to  purchase.  The  sale  was  made  to  a  party 
not  named  in  the  first  option,  but  who  claimed  the  right  to 
purchase  thereunder.  Held,  in  an  action  to  recover  commissions 
for  procuring  a  person  ready  to  buy  under  the  second  option, 
that  the  finding  that  the  party  to  whom  the  sale  was  in  fact 
made  was  not  entitled  to  purchase  under  the  first  option  was 
not  sustained  by  the  evidence.  Frye  v.  Wakefield,  107  Minn. 
291,  120  N.  W.  35. 


Sec.   1053.    Finding   that  broker   acted   for   defendant  was 
proper. 

In  an  action  for  deceit  arising  out  of  an  exchange  of  property, 
through  a  broker's  acting  for  defendant,  evidence  that  defend- 
ant stated  that  his  broker  made  a  mean  trade  for  him,  and  that 
he  had  made  a  poor  trade,  warrants  a  finding  that  such  broker 
was  acting  for  defendant  in  effecting  the  exchange.  Arnold  v. 
Teel,  182  Mass.  1,  64  N.  E.  413. 

Sec.  1053a.     Erroneous,  finding  that  defendant  was  indebted  to 
plaintiff. 

A  finding  by  the  court,  under  a  count  for  four  per  cent,  com- 
mission for  procuring  a  loan  of  $8,000  on  a  first  mortgage ;  that 
defendant  agreed  to  pay  such  commission ;  that  plaintiff  unsuc- 
cessfully negotiated  with  a  member  of  a  firm  for  the  loan ;  that 
plaintiff  introduced  defendant  to  such  partner,  and  that  there- 
after, without  plaintiff's  knowledge,  defendant  procured  from 
such  partner  a  loan  of  $2,000  of  his  individual  funds  on  a 
second  mortgage,  will  not  support  a  conclusion  of  law  that  de- 
fendant was  indebted  to  plaintiff  for  $80,  "being  a  commission 
of  four  per  cent,  on  $2,000."  Diltz  v.  Spahr,  16  Ind.  App.  591, 
45  N.  E.  1066. 


PLEADINGS,  PRACTICE,  ETC.  595 

SeCc  1058b.    Evidence  held  insufficient  to  show  ability  of  pur- 
chaser to  pay  for  property  purchased. 

Where  a  broker  sues  for  commissions  for  procuring  a  pur- 
chaser able  to  purchase  on  defendant's  terms,  one  of  which  was 
a  cash  payment  of  $25,000,  evidence  that  the  purchaser's  assets 
consisted  of  a  stock  of  groceries,  the  value  of  which  is  not  known, 
and  a  cause  of  action  against  third  parties  for  $10,000  or  $12,000, 
for  money  loaned,  and  that  he  has  no  funds  in  his  possession; 
Held,  insufficient  to  show  the  purchaser's  ability  to  pay  $25,000 
cash.  Schnitzer  v.  Price,  106  N.  Y.  S.  767,  122  App.  Div.  409. 
See  also  Sec.  157. 

Sec.  1054.  In  an  action  for  compensation,  verdict  on  con- 
flicting evidence  usually  upheld. 
There  being  a  conflict  of  evidence  the  question  is  exclusively 
for  the  jury,  and  a  finding  will  not  be  disturbed  on  appeal. 
Mousseau  v.  Dorsett,  80  Ga.  566,  5  S.  E.  780;  Semple  v.  Rand, 
112  Iowa  616,  84  N.  W.  683 ;  Hall  v.  Grace,  179  Mass.  400,  60 
N.  E.  932;  Holschien  v.  Fehleg,  55  Mo.  App.  375;  Sherwin  v. 
O'Connor,  24  Neb.  603,  39  N.  W.  620;  Abraham  v.  Burstein,  178 
N.  Y.  586,  70  N.  E.  1094 ;  Smith  v.  Cutter,  66  N.  Y.  S.  332,  54 
App.  Div.  618 ;  Van  Staler  v.  Herbst,  51  N.  Y.  S.  968,  30  App. 
Div.  255;  Chase  v.  Veal,  83  Tex.  333,  18  S.  W.  597. 

Sec.  1055.  Verdict  must  be  palpably  against  weight  of  evi- 
dence to  warrant  setting  aside. 
A  judgment  by  the  trial  court  to  M^hich  the  law  and  facts  are 
submitted  will  be  treated  on  appeal  as  the  verdict  of  a  properly 
instructed  jury  and  will  not  be  reversed  unless  palpably  against 
the  weight  of  the  evidence.  Summers  v.  Summers,  26  Ky.  L.  R. 
179,  80  S.  W.  1154;  Gallagher  v.  BeJl,  89  Minn.  291,  94  N.W. 
867;  Fish  v.  Calvin,  2  Silver.  (N.  Y.  Supreme)  450,  6  N.  Y. 
S.  64;  Ross  V.  Decker,  68  N.  Y.  S.  790,  34  Misc.  168;  Holland 
V.  Howard,  105  Ala.  538,  17  S.  35;  Loeb  v.  Teppee,  112  N.  Y. 
S.  1043. 

Sec.  1055a.    Answer  made  by  the  court  to  a  juror  held  not  to 
constitute  error  to  set  aside  verdict. 

In  an  action  to  recover  commissions  on  a  sale  or  exchange 
of  real  estate,  the  defendant  both  admitted  that  the  agreement 


596  AMERICAN    IjAW    REAL   ESTATE   AGENCY. 

had  been  made  and  averred  that  it  was  conditional  only,  and 
was  not  to  be  carried  out  if  .the  defendant  needed  the  money 
provided  by  the  agreement  for  a  mining  enterprise  in  which 
he  was  interested.  He  testified  that  the  money  was  needed  in 
the  enterprise,  and  that  the  agreement  was  never  carried  out. 
The  evidence  showed  that  nothing  was  said  about  money  when 
the  negotiations  commenced,  nor  when  the  property  was  placed 
in  the  hands  of  the  plaintiff  for  sale.  At  the  trial,  a  juror  asked 
whether  there  was  "any  evidence  that  there  was  anything  said 
about  money  when  they  entered  into  this  proceeding?"  to  which 
the  court  replied:  "Nothing  was  said  about  money.  I  will  leave 
to  you  the  whole  case,  whether  there  was  any  understanding  as 
to  the  payment  of  money  or  not,  or  that  the  defendant  could 
finally  withdraw  the  proposition  when  he  got  ready."  Held, 
that  the  answer  of  the  court  was  not  ground  for  reversal  of 
the  verdict  and  judgment  for  plaintiff.  Mitchell  v.  Edehurn, 
87  Pa.  Super.  Ct.,  223. 

Sec.  1056.     Verdict  not  set  aside  because  if  for  adverse  party 
it  would  have  been  sustained. 

"The  evidence  is  indeed  so  strong  in  defendant's  behalf  that 
had  the  verdict  been  for  him  no  one  would  have  thought  of  ques- 
tioning it,"  but  that  does  not  justify  setting  it  aside;  Veale  v. 
Greene,  105  Mo.  App.  182,  79  S.  W.  731 ;  nor  where  the  evidence 
is  conflicting  does  the  fact  that  the  appellate  court  might  have 
reached  a  different  conclusion.  Brarid  v.  Merritt,  15  Colo.  286, 
25  P.  175. 

Sec.  1057.    Verdict  not  disturbed  on  account  of  evidence  of 
ratification. 

In  an  action  by  a  real  estate  broker  to  recover  commissions, 
it  appeared  that  defendant's  husband  had  an  interview  with 
plaintiff  in  regard  to  the  sale  of  her  land,  and  that  subsequently, 
in  response  to  a  letter  from  plaintiff  the  husband  called  at  his 
office,  and  was  introduced  to  T.,  who  later  showed  defendant  and 
her  husband  land  that  he  wished  to  exchange,  but  it  did  not 
suit  defendant;  afterward,  she  accepted  another  offer  made  by 
T.  to  buy  the  land;  on  the  trial,  defendant  and  her  husband 
attempted  to  suppress  their  own  testimony,  and  their  conduct 


PLEADINGS,  PRACTICE,  ETC,  597 

justified  a  belief  that  defendant  had  authorized  or  ratified  her 
husband's  act.  Held,  that  a  verdict  for  plaintiff  would  not  be 
disturbed.    Sims  v.  Eocku'ell,  156  Mass.  372,  31  N.  E.  484. 

Sec.  1058.     Verdict  set  aside,  where  loan  was  refused  because 
interest  was  too  high. 

A  verdict  for  plaintiff  will  be  set  aside  as  against  the  weight 
of  the  evidence  where,  on  the  issue  whether  defendant  agreed 
to  pay  six  per  cent,  interest  for  a  loan,  so  as  to  render  him 
liable  to  plaintiff  for  procuring  a  person  ready  to  make  the  loan 
at  that  price,  defendant  testified  that  he  did  not  agree  to  pay 
six  per  cent.,  and  his  testimony  was  contradicted  only  by  the 
agent  through  whom  the  loan  was  made,  who  testified  to  a  con- 
versation with  defendant  about  the  loan,  and  stated  that  the 
rate  of  interest  was  to  be  six  per  cent.,  but  stated  no  conversa- 
tion to  that  effect,  and  testified  that  he  wrote  defendant  the 
next  day  that  he  would  make  the  loan  at  six  per  cent. ;  that  de- 
fendant at  once  refused,  because  the  interest  was  too  high,  and 
that  he  told  plaintiff  that  he  (defendant)  refused  the  loan  when 
the  question  of  interest  was  broached,  since  it  is  apparent  that 
the  statement  that  six  per  cent,  was  to  be  paid  was  merely  an 
inference  by  the  witness.  Crandall  v.  Philips,  43  N.  Y.  S.  299, 
13  App.  Div.  118. 

Sec.  1059.  Verdict  not  directed  for  plaintiff,  where  customer 
was  not  of  restricted  class. 
"Where  the  evidence  of  plaintiff,  suing  to  recover  commissions 
for  procuring  a  purchaser  for  defendant's  land,  of  itself  makes 
out  a  case,  the  court  will  not  direct  a  verdict  in  his  favor,  if 
the  evidence  of  the  defendant  shows  that  under  the  contract 
plaintiff  was  restricted  to  negotiate  a  sale  with  certain  persons, 
and  the  one  procured  by  him  did  not  belong  to  that  class.  Meyer 
v.  Strauss,  58  N.  Y.  S.  904,  42  App.  Div.  613. 

Sec.  1060.    Verdict  for  commissions  not  supported,  where  sale 
varied  from  authorization. 

Defendant  agreed  to  pay  plaintiff  .$100  to  find  a  purchaser 
for  a  farm  at  $2,400,  the  purchaser  to  receive  one-third  of  the 
crops ;  defendant  pi*ocured  a  purchaser  who  agreed  to  pay  $2,400 


598  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

for  the  land  and  the  landlord's  share  of  the  crops;  there  was 
no  evidence  as  to  what  constituted  the  landlord's  share  of  the 
crops,  or  of  the  purchaser's  ability  to  pay.  Held,  that  the  evi- 
dence was  not  sufficient  to  support  a  verdict  for  his  commissions. 
Howie  V.  Bratrud,  14  S.  Dak.  648,  86  N.  W.  747;  Haskell  v. 
Beighly  (Kans.  Sup.  '08),  96  P.  134. 

Sec.  1061.     Verdict  directed  for  defendant  erroneous,  when  not 
justified  in  believing  broker  recreant. 

Defendant  wrote  plaintiff  authorizing  him  to  sell  defendant's 
timber  land  in  Arkansas,  agreeing  that  if  plaintiff  put  defendant 
in  communication  with  a  reliable  purchaser  defendant  would 
protect  plaintiff  on  a  commission  of  five  per  cent.;  plaintiff  im- 
mediately corresponded  with  a  purchaser  who,  at  plaintiff's  di- 
rection, wired  defendant  for  the  price,  and  this  being  agreed 
on,  the  purchaser  wrote  plaintiff  a  letter  concerning  the  prop- 
erty, enclosing  a  skeleton  option,  which  he  desired  defendant  to 
execute;  plaintiff  then  went  to  defendant's  place  of  business 
and  showed  him  the  purchaser's  letter  with  the  option,  and  de- 
fendant, after  some  delay,  signed  the  option,  after  inserting  that 
the  price  should  be  net  cash  to  him,  but  without  any  statement 
that  it  was  to  be  free  of  commissions.  Held,  that  defendant  was 
not  justified  in  believing  that  plaintiff  was  acting  for  the  pur- 
chaser, and  that  it  was,  therefore,  error  for  the  court  to  direct 
a  verdict  for  defendant  in  plaintiff's  action  for  commissions. 
Love  V.  Scatcherd,  146  Fed.  1,  77  C.  C.  A.  1. 

Sec.  1062.     Verdict  for  broker  not  sustained  by  inviting  atten- 
tion of  public  to  land  and  negotiating. 

In  an  action  for  commissions  for  the  sale  of  land,  evidence 
that  plaintiff  invited  the  attention  of  the  public  to  the  property, 
and  used  time  in  active  negotiations  for  its  purchase,  and  that 
the  final  purchase  resulted  from  a  continuation  of  the  pre-exist- 
ing negotiations,  unaffected  by  the  broker's  acts,  was  insufficient 
to  sustain  a  verdict  for  plaintiff.  Sexton  v.  Goodrich,  131  Wis. 
146,  111  N.  W.  206. 

Sec.  1063.    Awarding  less  than  plaintiff  entitled  to,  styled  a 
"Sancho  Panza"  verdict. 

Plaintiff  was  employed  by  defendant  B.  to  sell  640  acres  of 
land  for  $15  an  acre  cash  to  B.  and  as  much  more  to  plaintiff  as 


PLEADINGS,  PRACTICE,  ETC.  599 

he  could  get;  plaintiff  induced  defendant  M.  to  purchase  for 
$19.50  per  acre,  and  to  deposit  such  amount  subject  to  a  tender 
of  title;  it  was  thereafter  discovered  that  B.  could  only  convey 
538  acres,  whereupon,  in  order  to  consummate  the  deal,  it  was 
arranged  that  a  sale  of  this  amount  should  be  made  at  $15  an 
acre,  and  that  the  purchaser  should  pay  plaintiff  $300,  and  that 
B.  should  pay  plaintiff  $600,  to  which  plaintiff  agreed;  it  was 
subsequently  discovered  that  B.'s  title  was  good  only  to  338 
acres,  which  were  conveyed.  Held,  that  the  agreement  by  both 
the  owner  and  the  purchaser  to  pay  such  amount  to  plaintiff 
was  based  on  sufficient  consideration,  and  that  plaintiff  was  en- 
titled to  recover  on  such  contract  and  not  on  a  quantum  meruit. 
* '  The  case  was  given  to  the  jury  without  a  charge ;  this,  perhaps, 
accounts  for  the  Sancho  Panza  verdict  they  returned."  Brun- 
son  V.  Blair,  44  Tex.  Civ.  App.  43,  97  S.  W.  337. 


Sec.   1064.    Verdict  properly  directed  for  defendant  where 
the  plaintiff  violated  his  authority. 

In  an  action  to  recover  real  estate  brokers'  commissions, 
the  plaintiffs'  right  to  go  to  the  jury  depended  upon  whether 
their  evidence  tended  to  show  that  they  procured  a  purchaser 
ready,  able  and  willing  to  buy  their  principal's  land,  at  a  price 
and  upon  terms  which  they  were  authorized  to  make,  and  there 
being  no  evidence  that  they  were  authorized  to  agree  to  pay 
the  purchaser  $50  a  day  &s  liquidated  damages  for  a  breach 
of  the  contract  to  convey,  and  to  secure  the  same  by  a  lien  on 
the  land,  or  that  the  proposed  purchaser  would  have  taken  the 
lands  without  such  agreement,  a  verdict  was  properly  directed 
for  defendant.  Evarts  v.  Fuqua  (Tex.  Civ.  App.  '08),  111  S. 
W.  675;  affirmed  118  S.  W.  132. 

Sec.  1065.    Judgment  unjustifiable  ought  to  be  set  aside. 

Where  the  judgment  cannot  be  justified  upon  any  hypothesis 
presented  by  the  pleadings  or  evidence  it  ought  to  be  set  aside. 
Also,  where  not  sustained  by  the  evidence,  being  excessive.  Ham^ 
mers  v.  Merrick,  42  Kan.  32,  21  P.  783;  Wulhart  v.  Weinstein, 
91  N.  Y.  S.  359. 


600  AMERICAN   LAW   REAL   ESTATE    AGENCY, 

Sec.  1065a.    Reduction  by  the  court  of  an  excessive  verdict. 

Defendants  agreed  that  if  plaintiffs  would  procure  purchasers 
for  lands,  defendants  would  pay  them  fifty  cents  an  acre  for 
their  services.  Plaintiffs  procured  purchasers  for  3,360  acres, 
to  be  thereafter  selected ;  but,  owing  to  the  fact  that  defendants 
did  not  own  or  control  the  lands  as  represented,  the  transaction 
failed.  Held,  that  a  verdict  of  $1,680  for  plaintiffs  was  exces- 
sive, and  should  be  reduced  to  $1,200,  as  it  was  not  certain 
that  all  of  the  purchasers  would  have  made  selections  and  pur- 
chased the  lands  for  which  they  subscribed,  Peavey  v.  Greer 
(Minn,  Sup.  '09),  121  N.  AV.  875. 

Sec.  1066.     Judgment  of  appellate  court  conclusive. 

In  an  action  for  commissions  for  services  as  broker,  the  amount 
which  the  plaintiff  is  entitled  to  recover  is  a  question  of  fact, 
on  which  the  .judgment  of  the  appellate  court  is  conclusive. 
Smith  V.  May  field,  163  111.  447;  45  N.  E,  157, 

Sec.  1067.    Judgment  not  reversed  for  improper  evidence. 

A  judgment  in  favor  of  a  real  estate  agent  on  a  contract  to 
pay  a  definite  sum  as  a  commission  will  not  be  reversed  because 
the  trial  court  permitted  him  to  introduce  evidence  that  the 
amount  of  commissions  alleged  to  be  paid  was  the  usual  charge 
of  real  estate  agents  in  that  citj^  for  similar  services,  Bra-naman 
V,  Sherman,  49  Kan,  771,  31  P,  667. 

Sec.  1068.  In  an  action  on  a  judgment  error  to  submit  to  jury 
whether  agent  could  release. 
A  loan  broker  acted  as  agent  for  both  parties  in  the  negotia- 
tion of  a  loan,  which  was  to  be  secured  by  a  trust  deed  of  land 
encumbered  by  judgments;  the  amount  of  the  loan  was  sent  to 
him  by  the  lender  with  instructions  to  see  that  the  amount  re- 
quired by  the  terms  of  the  deed  be  applied  to  secure  a  release 
of  this  judgment  by  the  original  judgment  creditor;  a  trans- 
fer of  it  to  him  by  the  present  holder  was  so  applied ;  the  agent 
at  first,  being  unable  to  obtain  a  release,  took  a  transfer  of  the 
judgment,  and  afterwards  obtained  a  release,  which  he  for- 
warded to  the  lender;  the  transaction  was  completed,  and  sub- 


PLEADINGS,  PRACTICE,  ETC.  QOl 

sequently,  at  the  request  of  the  borrower,  and  without  any  fur- 
ther instructions  from  the  lender,  the  agent  entered  on  the 
margin  of  the  judgment  record  a  receipt  in  full  for  the  judg- 
ment. Held,  that  an  instruction,  in  an  action  to  obtain  execution 
under  the  judgment,  and  submitting  the  question  whether  the 
agent  was  authorized  to  execute  satisfaction  of  the  judgment; 
was  improper.  Brown  v.  Dennis  (Tex,  Civ.  App.  '95),  30  S. 
W.  272. 

Sec.  1069.    Judgments  unsustained  by  the  evidence. 

In  an  action  for  commissions  for  effecting  the  sale  of  a  house, 
it  appeared  that  defendant  agreed  to  give  plaintiff  $75  if  he 
should  sell  the  house  for  $500  by  a  certain  day,  $50  if  he  sold 
it  for  $400  after  that  day;  plaintiff  .introduced  to  defendant 
a  purchaser  who,  after  the  day  specified,  purchased  the  house 
for  $350.  Held,  that  a  judgment  for  plaintiff  for  $35  was  not 
sustained  by  the  evidence.  Blackwell  v.  Adams,  28  ]\Io.  App. 
61;  Jones  v.  Pendleton,  134  Mich.  460;  96  N.  T;'.  574. 

In  an  action  brought  to  recover  commissions  alleged  to  have 
been  earned  by  the  plaintiff  on  a  sale  of  real  estate  of  defendant 
for  military  purposes  to  the  government,  through  his  agency, 
the  only  evidence  of  his  assistance  in  the  sale  was  that  he,  to 
some  extent,  helped  to  intensify  public  opinion  as  to  the  expedi- 
ency of  having  a  military  force  in  the  neighborhood.  Held,  that 
a  verdict  for  him  should  be  set  aside.  Com'l.  Nat.  Bk.  v.  Haw- 
kins, 35  111.  App.  463. 

Sec.  1070.    Judgment  for  a  smaller  amount,  when  it  will  not 
be  interfered  with. 

Where  an  action  was  brought  to  recover  commissions  for  effect-" 
ing  a  sale  of  real  estate,  and  the  testimony  shows  that  the  broker 
merely  procured  a  purchaser  who  purchased  the  premises  from 
the  owner,  Held,  that  a  judgment  awarding  the  broker  a  less 
sum  than  the  commissions  upon  a  completed  sale  will  not  be 
set  aside.  Gregg  v.  Loomis,  22  Neb.  174,  34  N.  W.  355.  Compare, 
Brunson  v.  Blair,  44  Tex.  Civ.  App.  43,  97  S.  W.  337. 

Plaintiff  sued  to  recover  commissions  for  obtaining  a  loan  for 
defendant,  and  testified  that  defendant  agreed  to  pay  one  and 
one-half  per  cent,  and  disbursements;  on  cross-examination  he 


602  AMERICAN   LAW  REAL  ESTATE   AGENCY. 

testified  that  he  told  defendant  the  lawyer's  charges  would  be 
one  per  cent,  and  disbursements,  and  that  the  plaintiff's  charge 
would  be  two  and  one-half  per  cent.,  and  that  defendant  agreed 
to  pay  it.  Held,  that  a  judgment  for  only  one-half  per  cent,  was 
supported  by  the  evidence,  since  there  was  no  evidence  that 
defendant  promised  to  pay  the  plaintiff  the  attorney's  charges, 
or  that  plaintiff  had  promised  to  pay  such  amount  to  the  at- 
torney. Robert  v.  Sire,  67  N.  Y.  S.  860,  33  Misc.  755.  See  also 
Sec.  572. 

Sec.  1071.  Judgement  for  full  amount  error,  where  loan  failed 
through  defective  title. 
Where  an  agreement  was  made  to  pay  plaintiff  $800  if  he 
secured  a  certain  loan  for  defendant  on  its  property,  which  sum 
was  to  cover  all  fees,  lawyer's  charges,  disbursements,  etc.,  it 
was  error  to  grant  a  judgment  for  the  full  amount,  where  per- 
formance was  prevented  by  reason  of  defendant's  defective 
title.  Gatling  v.  Central  Spar  Verein,  73  N.  Y.  S.  496,  67  App. 
Div.  50.     See  also  Sec.  572. 

Sec.  1071a.    Effect  of  a  judgment  as  barring  further  pro- 
ceedings. 

A  judgment  dismissing  an  action  on  an  express  promise  to 
pay  an  agreed  commission  for  selling  land,  entered  on  a  finding 
that  plaintiff  did  not  act  as  agent  for  defendant  in  the  sale,  and 
that  there  was  no  contract  for  a  commission,  is  a  bar  to  a  sub- 
sequent action  for  the  same  commission  based  on  an  express 
promise  to  pay  the  reasonable  value  of  the  services  after  they 
were  performed.  Krug  v.  Hendricks  (Wash.  Sup.  '09),  102 
P.  1049. 


CHAPTER  XVIII. 

SEXmON. 

1072-1078.     Error. 

1079-1131.     Judicial   constructions  and  inttrpretations. 

Sec.  1072.  Error  in  sustaining  objection  of  plaintiff  to  evi- 
dence of  plaintiff's  receipt  in  settlement. 
It  was  held  that  the  trial  court  erred  when  it  sustained  an 
objection  made  by  plaintiff's  counsel  to  the  introduction  in  evi- 
dence of  a  stipulation  made  by  the  parties  in  a  former  suit  and 
filed  in  court,  in  which  the  plaintiff  acknowledged  the  receipt 
of  $90  in  full  settlement  and  payment  of  all  claims  and  demands 
arising  out  of  the  alleged  cause  of  action.  Davis  v.  Thomas,  87 
Minn.  301,  91  N.  W.  1100. 

Sec.  1073.    Error  to  instruct  for  plaintiff  that  agent  acting  for 
both  parties  may  receive  compensation  from  both 

Plaintiff  sued  for  commissions  for  purchasing  property  for 
defendants,  on  the  theory  that  with  defendant's  knowledge  he 
was  to  rec(  ive  commissions  from  both  defendants  and  the  vendor ; 
plaintiff,  however,  during  the  negotiations,  had  written  a  letter 
to  defendants  stating  that  if  they  were  under  the  belief  that 
he  expected  to  receive  commissions  from  both  sides,  they  were 
mistaken ;  that  if  he  received  a  commission  from  the  other  side,  he 
would  charge  defendants  only  for  legal  services;  on  receipt  of 
this  letter  defendants  forwarded  the  purchase  price.  Plaintiff 
testified  that  the  letter  was  written  at  the  instance  of  the  agent 
of  defendants,  who  promised  him  other  business  from  the  com- 
pany sufficient  to  repay  him  for  the  release  of  commissions. 
Held,  that  as  defendants'  agent  could  not  have  authority  to  de- 
ceive defendants,  and  as  the  jury  might  have  found  that  de- 
fendants acted  on  the  strength  of  the  letter,  it  was  error  to 
instruct  for  plaintiff;  that  if  an  agent  acts  for  both  he  may  re- 
ceive compensation  from  both,  and  that  if  the  letter  releasing 

603 


604  AMERICAN   LAW    REAL   ESTATE   AGENCY. 

commissions  was  written  in  consideration  of  further  business, 
which  they  refused  to  give  plaintiff,  he  was  entitled  to  recover. 
Lindt  V.  Schlitz  Brewing  Co.,  113  Iowa  200,  84  N.  W.  1059.  See 
also  Sec.  558. 

Sec.  1074.  Error  to  exclude  testimony  of  defendant  that  he 
was  ignorant  of  agent's  double  employment 

In  an  action  by  a  real  estate  broker  to  recover  commissions 
on  an  exchange  of  property  effected  by  him,  it  appearing  that 
plaintiff  was  in  the  employ  of  both  parties  to  the  exchange,  the 
court  erred  in  excluding  the  testimony  of  defendant  tending 
to  show  that  he  was  ignorant  of  the  double  employment  of  plain- 
tiff, of  which  plaintiff  testified  that  defendant  was  informed. 
Condit  V.  Sill,  18  N.  Y.  S.  97. 

Sec.  1075.  In  the  absence  of  evidence  it  was  not  error  to 
exclude  that  other  party  knew  agent  was  paid  by-  de- 
fendant. 

In  an  action  to  recover  a  broker's  commissions  for  negotiating 
an  exchange  of  defendant's  property  for  the  property  of  L.  & 
W.,  where  there  was  no  evidence  that  defendant  knew  that  plain- 
tiff was  also  to  receive  commissions  from  L.  &  W.,  it  was  not 
error  to  exclude  evidence  that  L.  &  W.  knew  he  was  to  receive 
commissions  from  defendant.    Bdlin  y.  Wein,  104  N.  Y.  S.  360. 

Sec.  1075a.  Circumstances  showing  no  error  in  refusing  to 
grant  non-suit. 
There  being  evidence  tending  to  show  that  the  real  estate  agent 
had  first  agreed  with  another  person  to  procure  a  purchaser,  and 
that  all  of  them  should  have  an  interest  in  the  land  and  should 
divide  it  into  lots  and  sell  it  for  a  profit,  and  that  subsequently 
such  third  person  stated  to  the  real  estate  agent  that  the  con- 
templated purchaser  who  would  furnish  the  money  to  pay  for 
the  land  and  whose  name  was  not  divulged  to  the  agent  was 
unwilling  for  the  agent  to  be  interested  in  the  enterprise,  and 
that  thereupon  it  was  agreed  between  the  agent  and  the  person 
with  whom  he  was  dealing,  that  the  latter  would  pay  a  certain 
amount  to  the  former,  in  consideration  and  in  satisfaction  of 
his  commission  on  relinquishing  any  further  claim  of  interest, 


PLEADINGS,  PRACTICE,  ETC.  605 

which  he  did;  in  a  suit  by  the  agent  against  the  person  making 
such  agreement,  and  others,  there  was  no  error  relatively  to  such 
person  in  refusing  to  grant  a  non-suit  or  direct  a  verdict  in 
favor  of  the  defendant.  Mitchell  v.  Gi/f'ord  (Ga.  Sup.  '10),  67 
S.  E.  197  (Syllabus.) 

Sec.  1075b.    Error  in  awarding  verdict  to  real  estate  agent. 

Relatively  to  the  person  who  was  to  be  the  actual  purchaser 
and  pay  the  purchase  money,  there  was  no  evidence  sufficient 
to  show  that  he  knew  or  took  part  in  the  negotiations  with  the 
real  estate  agent  mentioned  in  the  preceding  headnote  or  that 
he  was  bound  by  any  promise  to  pay  commissions  of  the  agent, 
or  an  amount  for  the  latter 's  making  no  clann  to  be  interested 
in  the  purchase  and  development  of  the  property.  A  verdict 
against  him  in  behalf  of  the  rc»al  estate  agent  was,  therefore,  not 
warranted  by  the  evidence.    Id. 

Sec.  1075c.     Corporation  exempted  from  liability  for  commis- 
sion. 

The  same  is  true  of  a  corporation  which  was  formed  by  the 
purchaser  and  the  middleman  with  whom  the  real  estate  agent 
dealt,  some  time  after  the  agreement  of  purchase  was  made, 
and  which  corporation  took  over  the  land  and  improved  and 
sold  it.  The  evidence  did  not  show  that  any  such  corporation 
was  organized  or  in  contemplation  when  the  agreement  with  the 
real  estate  agent  was  claimed  to  have  been  made,  or  that  it  ever 
made  any  promise  or  did  anything  to  render  itself  liable  to  pay 
commissions  to  the  agent  on  account  of  the  sale  of  the  land.    Id. 

Sec.  1076.    Error  to  exclude  evidence  of  the  value  of  defend- 
ant's property. 

On  the  trial  of  an  action  for  a  broker's  commissions  on  an 
exchange  of  property  in  which  the  defense  was  that  the  defend- 
ant had  been  induced  to  part  with  his  property  by  plaintiff's 
false  representations;  after  plaintiff  had  been  permitted  to  testi- 
fy that  defendant  had  told  him  that  his  property  would  not 
sell  for  the  amount  of  the  mortgage  on  it,  and  also  that  in  plain- 


606  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

tiff's  opinion,  defendant's  property  was  worth  less  than  that 
exchanged  for  it,  defendant  attempted  to  prove  the  value  of 
his  property,  but  the  evidence  was  excluded ;  the  court  afterward, 
on  plaintiff's  request,  charged  that  if  defendant  did  not  rely  on 
any  false  representations  made,  plaintiff  must  recover.  Heldf 
that  the  exclusion  of  the  evidence  of  the  value  of  defendant's 
property  was  error.  Walker  v.  Johnson,  46  N.  Y.  S.  864,  21 
Misc.  16.    See  also  Sec.  194. 


Sec.  1076a.    Error  to  withdraw  from  the  consideration  of  the 
jury  the  number  of  acres  sold. 

In  an  action  for  the  breach  of  an  agreement  to  permit  plaintiff 
to  sell  land  on  commission,  where  the  number  of  acres  in  the 
tract  was  uncertain,  the  amount  which  plaintiff  was  entitled  to 
recover  depending  on  the  number  of  acres,  was  for  the  jury,  so 
that  it  was  error  to  charge  that  plaintiff  was  entitled  to  recover 
a  certain  sum,  if  they  found  the  contract  as  alleged.  Jackson 
V.  Stephenson  (Tex.  Civ.  App.   '08),  114  S.  W.  848. 


Sec.  1077.    It  is  not  error  to  prove  by  plaintiff  that  no  sale 
was  made. 

In  an  action  by  a  broker  to  procure  a  purchaser  of  real  estate 
for  his  commissions,  it  is  not  error  to  allow  defendant  to  prove 
by  plaintiff's  testimony  that  no  sale  of  the  premises  had  in  fact 
been  made.  Runck  v.  Dimmick,  111  S.  W.  779  (Tex.  Civ. 
App.  '08.) 


Sec.  1078.     Error  to  dismiss,  where  plaintiff  employed  to  se- 
cure a  purchaser,  shows  sale  to  his  customer. 

"Where  a  broker,  suing  for  commissions,  showed  that  he  was 
employed  to  procure  a  purchaser  of  real  estate  on  terms  speci- 
fied, and  that  he  called  the  property  to  the  attention  of  a  third 
person,  who  examined  it,  and  after  conference  with  the  agent 
of  the  owner,  purchased  it  on  the  terms  specified,  it  was  error 
to  dismiss  the  plaintiff  at  the  close  of  his  evidence.  Schubert  v. 
Kaplan,  109  N.  Y.  S.  729. 


PLEADINGS,  PRACTICE,  ETC.  607 

Sec.  1078a.     To  work  a  reversal  errors  in  the  tiial  must  have 
been  prejudicial. 

Error  in  the  trial  to  work  a  reversal  on  review  must  have 
been  prejudicial  to  the  complaining  party.  Rothschild  v,  Bur- 
ritt,  47  Minn.  28,  49  N.  W.  393 ;  Wray  v.  Carpenter,  16  Colo. 
271,  27  P.  783. 

Sec.  1078b.    Error  to  exclude  contract  of  sale. 

In  an  action  by  a  broker  for  commissions  for  a  sale  of  defend- 
ant's lands,  where  the  evidence  shows  that  defendant  when  noti- 
fied of  the  sale  acquiesced  in  the  terms  thereof,  it  was  error  to 
exclude  the  contract  authorizing  the  plaintiff  to  make  the  sale, 
on  the  ground  that  the  sale  was  not  according  to  the  contract. 
Czarnowski  v,  Holland,  5  Ariz.  119,  78  P.  890. 

Sec.  1078c.    No  such  failure  of  proof  shown  as  to  justify  the 
taking  of  the  case  from  the  jury. 

A  complaint  alleged  an  authorization  to  plaintiff  to  offer 
certain  property  for  sale,  and  to  be  paid  ten  per  cent,  on  any 
amounts  above  $60,000  realized ;  that  within  the  time  stipulated 
in  the  contract  plaintiff  procured  an  offer  of  $80,000,  and  ad- 
vised defendant  that  more  might  be  procured;  that  defendant 
sold  the  property  for  more  than  said  offer,  whereby  plaintiff 
became  entitled,  etc.,  under  the  written  contract  admitted  by 
defendant;  the  broker  was  entitled  to  his  commissions  if  a  pur- 
chaser was  procured  willing  to  pay  a  sum  in  excess  of  $60,000. 
It  was  also  admitted  that  plaintiff  notified  defendant  of  the  offer 
of  $80,000,  that  he  intimated  that  more  could  be  secured,  and 
that  a  sale  for  a  larger  amount  was  subsequently  made  by  de- 
fendant to  such  purchaser;  plaintiff,  in  addition  to  referring  to 
the  written  contract,  testified  that  when  the  arrangement  was 
made  the  services  had  been  rendered,  nothing  more  being  con- 
templated; that  the  offer  was  communicated  to  and  defendant 
advised  what  the  purchasers  were  willing  to  pay;  that  the  money 
demanded  was  for  information  given.  TIeld,  not  such  a  failure 
of  proof  of  the  cause  of  action  set  out  in  the  complaint  as  to 
justify  the  taking  of  the  case  from  the  jury.  Geoghegan  v. 
Chatterton,  99  N.  Y.  S.  702,  113  App.  Div.  835. 


608  AMERICAN    LAW    REAL    ESTATE    AGENCY. 

Sec.  1078d.    Evidence  on  question  of  abandonment  improperly 
excluded. 

In  an  action  for  commissions  by  real  estate  brokers,  where 
the  defense  was  that  defendants  had  cancelled  plaintiffs '  empJoy- 
ment  before  the  sale,  testimony  whether  a  proposition  received 
after  the  alleged  abandonment  was  more  or  less  favorable  than 
the  original  one,  was  competent  on  the  question  of  abandonment, 
and  was  improperly  excluded.  Young  v.  Hubbard,  154  Mich. 
218,  117  N.  W.  632,  15  D.  L.  N.  725. 

Sec.  1078e.     Error  to  charge  that  broker  would  not  be  entitled 
to  recover  unless  broker  procured  increased  price. 

In  an  action  by  a  broker  to  recover  his  commissions,  where 
the  broker  testifies  that  the  defendant,  the  owner,  after  authorizi- 
ing  him  to  sell  the  property  at  a  certain  price,  in  a  later  inter- 
view fixed  a  greater  net  price,  it  is  error  for  the  court  to  charge 
the  jury  that  according  to  defendant's  contention  the  plaintiff 
would  not  be  entitled  to  recover  unless  he  had  found  a  purchaser 
willing  to  pay  such  larger  net  price.  Sechrist  v.  Atkinson,  31 
App.  D.  C.  1. 

Sec.  1079.    When   judicial   construction   will   not  be   placed 
solely  on  correspondence. 

The  defendant  had  no  right  to  demand  that  correspondence 
be  given  a  judicial  construction  alone,  where  some  of  the  letters 
and  the  defendant's  endorsements  thereon  referred  to  telephonic 
conversations  between  the  parties  in  relation  to  the  subject-mat- 
ter in  issue.  Beach  v.  Traveler's  Insurance  Co.,  73  Conn.  118, 
46  A.  867. 

Sec.  1080.    The  question  of  what  constitutes  a  reasonable  time. 

What  constitutes  a  reasonable  time  is  a  question  for  the  court. 
Id.  In  other  jurisdictions  it  is  considered  a  question  of  fact,  to 
be  determined  by  the  jury,  on  evidence  of  the  steps  necessary  to 
be  taken.  Dent  v.  Poivell,  80  Iowa,  456,  45  N.  W.  772;  Hurst  v. 
Williams,  31  Ky.  L.  R.  658,  102  S.  W.  1176 ;  Oliver  v.  Katz,  131 
Wis.  409,  111  N.  W.  509. 


PLEADINGS,  PRACTICE,  ETC.  609 

Sec.  1081.    Construction  of  commission  contract. 

Where  a  contract  for  commissions  on  a  sale  of  real  estate 
provided  for  its  payment  as  soon  as  the  purchaser  had  made 
payment  of  the  balance  due  after  the  payment  made  at  the  time 
the  contract  was  executed,  no  commission  was  payable  until 
after  the  land  was  paid  for,  and  in  construing  the  commission 
contract,  the  contract  as  to  the  sale  of  the  land,  so  far  as  it 
related  to  the  purchase  price,  should  be  construed  with  it. 
Robertson  v.  Vasey,  125  Iowa,  526,  101  N.  W.  271. 

Sec.  1082.    Construction  of  employment  to  negotiate  a  lease. 

In  an  action  for  commissions  for  the  sale  of  a  lease,  in  a 
petition  which  alleged  that  defendant  authorized  plaintiff  to 
negotiate  a  sale,  the  word  "negotiate"  should  be  construed  to 
mean  conversations  in  arranging  the  terms  of  a  contract.  North- 
rupp  V.  Diggs,  128  Mo.  App.  217,  106  S.  W.  1123. 

Sec.  1083.  Contract  construed  to  be  that  of  agency  and  not 
an  option. 

A  writing  in  express  terms  empowering  and  authorizing  real 
estate  brokers  to  sell  land  for  $1,000,  or  as  much  less  as  the 
owner  might  take,  binding  the  brokers  to  accept  as  remuneration 
any  sum  they  might  obtain  in  excess  of  the  sum  stipulated  that 
the  owTier  should  receive,  was  a  contract  of  agency  and  not  an 
option  to  the  brokers  to  purchase  the  land.  Tate  v.  Aitken,  5 
Cal.  App.  505,  90  P.  836. 

Sec.  1084.  Exclusive  contract  construed  not  to  entitle  broker 
to  commissions  on  owner  making  contract  with  second 
broker. 

Where  one  has  charge  of  real  estate  under  an  exclusive  agency 
for  its  sale,  and  as  a  part  of  his  compensation  is  to  receive  a 
percentage  of  the  price  for  which  it  is  sold,  no  matter  to  whom, 
a  contract  by  the  owner  granting  to  a  third  person  the  right 
to  sell  and  retain  all  the  proceeds  over  a  certain  price,  is  not 
a  sale  in  such  a  sense  as  to  entitle  the  original  agent  to  the 
specified  percentage.  Kirschner  v.  Brown  (Kan.  Sup.  '08), 
96  P.  848. 


610  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

Sec.  1085.     The  word  "taxes"  construed  not  to  include  street 
assessments. 

Where  a  contract  with  brokers  for  the  sale  of  land  required 
defendant  to  furnish  a  certificate  of  title  showing  the  property 
clear  of  any  incumbrances,  except  ***  *  *  taxes  assessed  but 
not  due  and  payable,"  defendant  was  not  bound  to  clear  the 
property  from  all  street  assessments,  the  word  "taxes"  being 
ordinarily  used  to  refer  only  to  taxes  assessed  for  state,  county, 
or  city  purposes,  and  not  to  describe  street  assessments  for  public 
improvements.    Alderson  v.  Houston,  96  P.  884,  154  Cal,  1. 


Sec.  1086.     The  word  "divide"  construed  to  mean  into  equal 
parts. 

A  complaint  in  an  action  by  a  broker  for  commissions,  which 
alleged  that  plaintiff  was  employed  to  assist  in  making  a  sale, 
that  defendant  promised  to  pay  plaintiff  for  his  services  a  half 
of  the  commissions  received  on  a  sale  being  made,  that  a  sale 
was  made  through  the  services  of  plaintiff,  and  that  defendant 
received  a  specified  sum  for  commissions,  is  supported  by  evi- 
dence that  defendant  agreed  to  "divide"  the  commissions  with 
plaintiff,  the  word  "divide"  in  common  parlance,  meaning 
when  used  by  two  contracting  parties,  severance  or  partition 
into  equal  parts.    Graves  v.  White,  43  Colo.  131,  95  P.  347 

Sec.  1087.     Instrument  held  to  be  a  contract  of  sale  and  not  in 
itself  a  sale. 

Where  S.  &  N.  make  a  contract  about  the  conveyance  of  a 
farm  by  S.  to  N.  who  pays  a  certain  sum  in  cash,  and  agrees  to 
pay  a  further  sum  at  a  future  time,  and  execute  a  mortgage  for 
the  balance  of  the  purchase  price,  at  which  time  S.  agrees  to 
make  a  deed  to  the  farm,  giving  possession  of  the  same ;  and 
at  the  same  time  it  is  further  agreed  that  if  N.  fails  to  pay  the 
further  sum  of  money  and  to  execute  the  mortgage,  then  the 
money  paid  shall  be  forfeited  to  S ;  Held,  that  such  an  instru- 
ment is  a  contract  of  sale,  and  not  a  sale  itself.  Stewart  v.  Fow- 
ler, 37  Kan.  677,  15  P.  918. 


.     ,       PLEADIN-GS,    PRACTICE,   ETC.  611; 

Sec.  1088.  Contract  construed  as  that  of  agency  and  not  em- 
ployment as  mere  middlemen. 
A  contract  placing  property  in  the  hands  of  real  estate  agents 
for  sale  or  exchange,  the  owner  reserving  an  option  as  to  whether 
it  should  be  sold  or  exchanged,  expressly  agreeing  to  give  the 
agents  all  the  assistance  in  his  power  in  the  transaction,  confers 
upon  the  agents  authority  to  negotiate,  and  does  not  constitute 
them  mere  middlemen  to  bring  the  parties  together.  Scrihner 
V.  Collar,  40  Mich.  275. 

Sec.  1089.     Broker's  contract  construed  as  absolute  promise  to 
pay  price  of  land  if  not  sold  within  a  year. 

After  agreeing  to  sell  land  belonging  to  plaintiff  for  $12,000 
within  one  year,  defendant  agreed  to  account  for  the  proceeds 
of  sale  of  said  premises,  whenever  prior  to  the  expiration  of 
said  twelve  months,  he  should  effect  a  sale  of  said  premises. 
Held,  that  this  was  not  an  agreement  to  pay  only  on  condition 
that  a  sale  was  made,  but  was  an  absolute  promise  to  pay  within 
a  year,  and  to  pay  before  the  end  of  a  year  if  a  sale  should  be 
sooner  affected.    Dunn  v.  Macltey,  80  Cal.  104. 

Sec.  1090.     Remark  of  principal  held  not  to  destroy  broker's 
ability  to  sell  at  price  stipulated. 

Plaintiff's  assignor  was  authorized  to  sell  defendants'  manu- 
factory for  $125,000.  He  found  parties  willing  to  take  a  lease 
of  it  for  six  months,  with  privilege  to  purchase  it  for  the  price 
stated.  Defendants  stated  to  one  M.  about  the  same  time  that 
they  would  be  glad  if  a  purchaser  could  be  found  at  $100,000, 
but  it  did  not  appear  that  this  remark  ever  reached  the  proposed 
lessees,  or  any  intending  purchaser.  There  was  no  evidence  that 
the  property  had  a  market  value  of  $125,000,  except  the  above 
proposal  of  lease.  Held,  that  defendants'  statement  did  not  de- 
stroy the  market  at  $125,000,  so  as  to  entitle  plaintiff's  assignor 
tD  the  commissions  he  would  have  made  in  ease  of  sale.  Barkley 
V.  Olcott,  5  N.  Y.  S.  525. 

Sec.  1091.    Broker  under  a  general  emplo3anent  held  not  en- 
titled to  extra  compensation  for  drawing  lease. 

In  an  action  for  a  broker's  comission  for  drawing  leases  of 
his  principals*  property,  it  was  shown  that  he  had  a  power  of 


612  AMERICAN   LAW   REAL   ESTATE    AGENCY, 

attorney  to  collect  rents  and  execute  leases  to  their  property  for 
a  compensation  of  five  per  cent.,  and  he  admitted  that  he  had 
charge  of  the  property  concerned  in  the  action  on  the  same 
terms.  It  was  shown  that  he  collected  the  rents  and  retained 
a  commission  of  five  per  cent.  Held,  that  a  verdict  for  defend- 
ants was  properly  directed.     Fish  v.  Tlodsdon,  16  N.  Y.  S.  92. 

Sec.  1092.     Contract  held  not  invalid  because  of  lack  of  con- 
sideration, absence  of  mutuality  or  want  of  definite  term 
of  existence. 
A  contract  between  a  land  company  and  real  estate  agents, 
whereby  the  latter  agreed  to  sell  the  town  lots  of  the  company 
at  a  certain  town,  for  such  prices  as  might  be  deemed  just,  and 
the  company  agreed  to  pay  the  agents  ten  per  cent,  on  all  sales, 
and  to  set  apart  certain  lots  for  advertising  purposes,  etc.,  was 
not  invalid  for  lack  of  consideration,  absence  of  mutuality,  or 
want  of  definite  term  of  existence.    Albany  Land  Co.  v.  Rickel, 
162  Ind.  222,  70  N.  E.  158 ;  Boyd  v.  Watson,  101  Iowa,  214,  70 
N.  W.  120;  Norman  v.  Hopper,  38  Wash.  415,  80  P.  551. 

Sec.  1093.  Statute  restricting  broker's  fee  for  securing  loan 
applicable,  when  suit  brought  to  enforce  after  change 
made. 

1  Rev.  St.,  p.  709,  restricting  brokers'  fees  for  negotiating 
loans  to  one-half  of  one  per  cent,  on  the  amount  loaned,  applies 
to  a  contract  for  a  loan  procured  while  such  statute  was  in  force, 
although  not  sought  to  be  enforced  until  after  the  statute  was 
changed.    Anderson  v.  Dwyer,  63  N.  Y.  S.  201,  30  Misc.  793. 

Sec.  1094.  Broker  entitled  to  ten  per  cent,  on  excess  above 
$60,000. 
A  contract  stipulated  that  the  broker  was  "authorized  to 
offer"  certain  property  for  sale,  and  in  lieu  of  the  usual  broker- 
age "you  are  offered  ten  per  cent,  on  the  excess  above  $60,000." 
Held,  that  if  the  broker  procured  a  purchaser  willing  to  pay  a 
sum  in  excess  of  $60,000,  he  was  entitled  to  ten  per  cent,  on 
the  amount  accepted  by  the  owners  in  excess  of  $60,000.  Geoghe- 
gan  v.  Chatterton,  99  N.  Y.  S.  702,  113  App.  Div.  835. 


PLEADINGS,  PRACTICE,  ETC.  613 

Sec.  1095.     Broker   held   entitled   to   remaining   commissions 
from  proceeds  of  sale  of  corporate  stock. 

In  an  action  hy  a  broker  to  recover  commissions  on  a  sale 
of  realty,  the  evidence  showed  that  defendant  agreed  to  pay 
$20,000  commissions  on  the  sale  of  certain  coal  lands,  and  that 
plaintiff  secured  a  purchaser,  and  that  the  land  was  sold  and 
the  consideration  received  in  corporate  stock.  Defendant  agreed 
that  on  the  sale  of  the  stock  he  would  pay  one-fourth  of  the 
proceeds  of  every  sale  made  by  him  until  the  $20,000  was  paid; 
after  several  sales  defendant  sold  for  a  reduced  sum  the  balance 
of  the  stock  which  he  had  received,  having  paid  plaintiff  his  pro- 
portion of  previous  sales.  Held,  that  plaintiff  was  entitled  to 
recover  out  of  the  sum  paid  for  the  balance  whatever  was  due 
him  of  the  $20,000.    Ryan  v.  Starr,  214  Pa.  St.  318,  63  A.  704. 

Sec.  1096.  Broker  refusing  to  carry  out  contract  of  substitu- 
tion denied  recovery  of  commissions. 
"Where  a  real  estate  broker  agreed  with  a  prospective  tenant, 
and  executed  a  receipt  in  full  for  his  commissions,  in  order  to 
enable  the  tenant  to  procure  a  lease,  and  to  accept  from  the 
tenant  stock  and  bonds  of  a  corporation  which  the  tenant  was 
to  organize  as  payment  for  his  commissions,  but  refused  to  carry 
out  such  agreement,  he  could  not,  irrespective  of  the  question 
of  novation,  recover  his  commissions  from  the  principal.  Davis 
V.  True,  85  N.  Y.  S.  843,  89  App.  Div.  319. 

Sec.  1097.     Objection  to  question  held  properly  sustained. 

In  an  action  by  a  loan  broker  against  a  client  who  had  refused 
to  take  the  loan  after  a  lender  had  been  secured,  the  defendant 
testified  that  he  told  the  lender's  attorney  that  he  would  not 
complete  the  loan  until  he  had  arranged  to  pay  an  existing  mort- 
gage before  maturity,  and  a  day  or  so  later  he  told  him  that  he 
had  notified  the  mortgagee  that  the  negotiations  pending  for  the 
paying  off  of  his  loan  had  terminated.  He  was  then  asked, ' '  What 
caused  the  making  of  that  statement?  What  transpired  between 
you  and  plaintiff  that  led  you  to  make  that  statement  to  the 
mortgagee,  that  the  transaction  had  terminated?"  Defendant 
had  testified  fully  as  to  his  conversation  with  plaintiff.     Held, 


614  AMERICAN   LiAW   SEAL   ESTATE   AGENCY. 

that  the  objection  to  the  question  was  properly  sustained.     Payrie 
V.  WiWiams,  178  N.  Y.  589,  70  N.  E.  1104.  •      . 

Sec.  1098.     Evidence  held  not  to  show  that  broker  so  acted 
in  the  interest  of  tenant  as  to  defeat  right  to  commissions. 

Defendant  entrusted  to  plaintiffs  the  leasing  of  certain  prop- 
erty, offering  to  erect  a  building  thereon  for  the  tenant  under  a 
long  lease.  Other  parties  had  come  to  plaintiffs  to  find  them 
a  building  suitable  for  their  purpose.  Plaintiffs  brought  these 
parties  and  defendant  together ;  the  matter  was  discussed  and  an 
arrangement  for  a  twenty  years'  lease  effected,  the  contract  be- 
ing drawn  by  plaintiffs ;  difficulties  occurred  in  the  arrangements, 
owing  to  the  necessity  of  a  fireproof  building,  and  an  increased 
rental  to  which  the  proposed  tenants  objected ;  but  this  difficulty 
was  bridged  over  by  the  plaintiffs'  efforts,  who  were  in  tele- 
graphic communication  with  defendant.  Held,  that  the  evidence 
did  not  show  that  plaintiffs  were  acting  to  such  an  extent  in 
the  interest  of  the  tenants,  as  well  as  in  the  interest  of  the  de- 
defendant,  as  to  preclude  the  recovery  of  commissions.  Rutledge 
V.  Neely,  99  Mo.  App.  384,  73  S.  W.  359. 

Sec.  1099.     Special  finding  of  jury  that  plaintiff  was  procuring 
cause  of  sale  construed  not  to  entitle  to  commissions. 

In  an  action  for  a  broker's  commissions,  the  jury  specially 
found  that  plaintiff  was  the  procuring  cause  of  the  sale  by  the 
owner  to  the  purchaser ;  but  also  found  that  plaintiff,  before  the 
sale,  had  released  defendant  from  the  obligation  to  pay  any 
commissions  in  case  he  sold  the  farm  himself,  and  that  defend- 
ant relied  on  such  releases  in  selling  the  farm.  Held,  that  a 
finding  that  plaintiff  was  the  procuring  cause  of  the  sale  only 
meant  that  plaintiff  drew  the  purchaser's  attention  to  the  farm, 
and  did  not  constitute  a  finding  that  the  sale  was  in  fact  made 
by  plaintiff  and  not  by  the  owner,  so  as  to  entitle  plaintiff  to 
commissions,  notwithstanding  the  release.  Wisconsin  Farm  Land 
Co.  V.  Bullard,  119  Wis.  320,  96  N.  W.  833 

Sec.  1100.     Contract  held  not  in  violation  of  U.  S.  land  laws. 
A  contract  whereby  a  party  holding  a  homestead  entry  of  gov- 
ernment land,  on  which  are  certain  improvements,  agrees  with 


PLEADINGS,  PRACTICE,  ETC.  615 

another  party  to  pay  him  a  certain  per  cent,  commission  if  he 
will  find  a  purchaser  for  such  land,  and  such  party  does  find 
such  purchaser,  who  pays  a  certain  stipulated  sum  to  the  home- 
stead entryman,  who  releases  his  homestead  entry,  and  the  other 
party  files  thereon,  is  not  void  as  in  violation  of  the  land  laws 
of  the  United  States.    Hoyle  v.  Johnson,  18  Okla.  330,  89  P.  1119. 

Sec.  1101.    Extension  of  time  should  be  pleaded  ,in  order  to 
justify  evidence  thereof. 

Where  time  was  of  the  essence  of  a  broker's  contract  for 
the  sale  of  land,  an  extension  of  time  should  be  pleaded  in 
order  to  justify  evidence  thereof  and  its  submission  to  the  jury. 
Lenschner  v.  FatricJc  (Tex.  Civ.  App.  '07),  103  S.  W.  664. 

Sec.  1102.  Contract  construed  to  authorize  sale  at  $1,700 
gross. 
"Where  agents  wrote  the  owner  of  a  lot  submitting  offer  of 
$1,500,  less  commissions,  and  the  owner  replied  that  he  thought 
$1,700  a  fair  price,  and  that  it  would  be  acceptable  to  him,  the 
agents  were  authorized  to  sell  for  $1,700  gross.  Campbell  v. 
Lomhardo,  44  S.  362,  153  Ala.  489. 

Sec.  1103.     Contract  limited  to  one-half  the  net  profits  on  lots 
sold. 

Under  a  contract  of  appointment  as  exclusive  agent  for  six 
months  to  sell  and  manage  lots,  agents  to  receive  one-half  the 
net  profits,  the  agents  are  limited  to  one-half  the  net  profits  on 
sales  made  during  the  six  months,  and  are  not  entitled  to  receive 
one-half  the  net  profits  on  sales  thereafter  made.  Title  Ins.  & 
Trust  Co.  V.  Gridcv,  152  Cal.  746,  94  P.  601. 

Sec.  1104.  Construction  of  contract  where  broker  was  to  re- 
ceive one-half  the  net  profits. 
Under  a  contract  whereby  the  parties  agreed  to  put  in  cement 
sidewalks,  build  stone  pillars,  and  write  all  advertiseemnts,  in 
consideration  of  their  appointmemt  as  exclusive  agents  to  sell 
lands,  "all  of  the  above  to  be  paid  for  by"  such  parties,  they 
to  receive  one-half  the  net  profits,  the  expense  of  putting  in 
cement  walks,  etc.,  must  be  paid  by  such  parties,  and  they  afe 


616  AMERICAN   LAW   REAL  ESTATE   AGENCY. 

not  entitled  to  have  the  same  paid  out  of  the  proceeds  of  sales. 
Id 

Sec.  1105.  Coristniction  against  right  of  claimants  to  com- 
missions. 
In  a  controversy  between  rival  claimants  for  commissions  upon 
a  sale  of  real  estate,  where  there  is  no  dispute  that  a  certain 
person  hold^  the  title  and  paid  the  purchase  price,  and  nothing 
to  show  that  the  purchase  by  such  person  was  a  mere  pretense 
to  cover  a  sale  to  the  brokers  who  ostensibly  produced  him,  the 
presumption  must  be  that  he  was  a  bona  fide  purchaser,  and  that 
the  only  parties  entitled  to  commissions  are  those  who  produced 
him,  and  the  mere  fact  that  such  parties  may  have  accepted 
commissions  from  him  does  not  increase  the  rights  of  claimants 
who  did  not  produce  him.  Shapiro  v.  Shapiro,  110  N.  Y.  S. 
11,  125  App.  Div.  608. 

Sec.  1106.    Agreement  construed  not  to  be  harsh  or  unrea- 
sonable. 

An  agreement  to  pay  plaintiff,  a  real  estate  broker,  $500  in 
case  a  sale  was  made  to  one  of  his  customei's,  in  consideration 
of  plaintiff's  bringing  such  customer  to  inspect  defendant's 
farm,  without  plaintiff  being  required  to  solicit  or  endeavor  to 
induce  the  customer  to  buy,  it  being  plaintiff's  intention  to  show 
the  customers  other  farms  in  the  neighborhood  listed  with  him 
for  sale,  was  not  harsh  or  unreasonable.  Lee  v.  Conrad  (Iowa 
Sup.  '08),  117  N.  W.  1096. 

Sec.  1107.    Contract  construed  to  be  an  agreement  of  agency. 

Plaintiff,  the  owner  of  land,  entered  into  a  contract  with  de- 
fendant and  his  partner,  by  the  terms  of  which  the  defendant 
and  his  partner  were  to  sink  a  well  on  the  land,  install  a  pumping 
plant,  and  develop  water  upon  the  premises,  they  to  pay  all 
the  expenses  and  were  to  subdivide  and  sell  the  premises,  in 
consideration  of  which  they  were  to  have  the  exclusive  handling 
and  sale  thereof,  and  the  net  proceeds  of  the  sale  of  the  land 
and  crops  raised  thereon,  after  fir<«t  pacing  plaintiff  the  first 
cost  of  the  land,  were  to  be  divided  equally  between  plaintiff 
and  defendant's  firm.     Defendant's  firm  was  given  the  option 


PLEADINGS,  PRACTICE,  ETC.  617 

to  make  such  terms  of  sale  as  they  might  deem  proper,  subject 
to  certain  restrictions,  and  the  contract  provided  that  if  the 
property  should  not  be  subdivided  and  sold  by  defendant's  firm 
at  a  sooner  date,  the  contract  should  remain  in  force  for  two 
years,  and  for  such  further  time  as  might  be  agreed  upon  at 
the  end  of  that  period.  Held,  that  the  contract  was  nothing 
more  than  an  agreement  of  agency  whereby  defendant's  firm, 
in  consideration  of  money  and  services  to  be  given  by  them, 
were  given  the  exclusive  right  to  sell  the  land  for  a  compensation 
to  be  measured  by  the  price  realized.  They  had  no  interest,  legal 
or  equitable,  in  the  land;  at  least,  after  the  expiration  of  the 
time  limited  by  the  parties.  Hicks  v.  Post  (154  Cal.  22),  96 
P.  878. 

Sec.  1108.  Contract  not  being  to  sell  on  credit  enforceable 
against  principal. 
A  contract  of  real  estate  brokers  on  their  principal's  part  to 
sell  property  for  $35,500,  payable  $10,000  in  cash,  and  balance 
to  be  arranged  to  the  satisfaction  of  the  owners,  is  enforceable 
against  the  principal,  not  being  an  agreement  to  sell  on  credit, 
which  the  brokers  were  not  authorized  to  make.  Kemper  v.  Gans 
(87  Ark.  221),  111  S.  W.  1123 ;  rehearing  denied,  112  S.  W.  1087. 

Sec.  1109.  Contract  of  agent  to  sell  land  not  objectionable, 
though  not  signed  by  both  parties. 
A  contract  for  the  sale  of  lands,  made  by  the  owner  to  a 
real  estate  agent,  must  be  construed  as  like  contracts  between 
other  parties,  and  that  it  provides  for  deducting  from  the  agreed 
purchase  price  a  sum  designated  as  "commission"  to  be  allowed 
by  the  vendor,  does  not  render  it  objectionable  under  the  statute 
making  void  all  contracts  between  the  owner  of  land  and  the 
agent  employed  to  sell  the  same,  not  reduced  to  writing  and 
subscribed  by  both  parties.  Waters  v.  Phelps  (81  Neb.  674), 
116  N.  W.  783. 

Sec.  1110.     Sale  of  land  by  owner  entitled  brokers  to  compen- 
sation, no  previous  notice  of  revocation  having  been  given. 

Defendant,   after  authorizing   plaintifT  and   other  brokers  to 
sell  land,  made  a  contract  with  a  purchaser  to  convey,  in  which 


618  AMERICAN   LAW   REAL   ESTATE   AGENClf. 

it  was  specified,  with  plaintiff 's  consent,  that  the  contract  should 
be  void  by  the  other  brokers  claiming  commissions,  which  they 
did.  The  contract  as  written  was  marked  "void,"  but  at  the 
same  time  defendant  and  the  purchaser  executed  another  writing 
identical  in  terms  with  the  first  agreement,  except  that  the 
provision  that  it  should  be  void  on  the  other  brokers  claiming 
commissions  was  omitted,  the  deposit  made  by  the  purchaser 
on  execution  of  the  first  contract  being  retained.  Held,  That, 
though  defendant  could  have  annulled  the  contract  when  the 
other  brokers  claimed  commissions,  and  thus  have  escaped  lia- 
bility, he  did  not  do  so,  and  that  plaintiff  was  entitled  to  his 
commissions,  the  mere  transcribing  of  the  agreement  not  amount- 
ing to  a  new  contract.  Field  v.  Walfordf  131  Mo.  App.  391,  111 
S.  W.  523. 

Sec.  1111.     Contract  for  the  benefit  of  a  third  person  may,  un- 
der a  statute  providing  therefor,  be  enforced  by  him. 

"Where  an  owner  contracted  to  convey  to  any  purchaser  se- 
cured by  a  broker  employed  to  procure  a  purchaser,  the  contract 
was  for  the  benefit  of  a  purchaser  procured  by  the  broker  within 
the  provisions  of  the  statute  providing  therefor,  that  a  contract 
made  for  the  benefit  of  a  third  person  may  be  enforced  by  him. 
Bacon  v.  Davis  (Cal.  App.  '08),  98  P.  71. 

Sec.  1112.     Construction  of  the  word  "sold"  as  used  in  the 
contract. 

In  the  absence  of  a  contrary  showing,  land  is  sold  within  a 
parol  contract  authorizing  a  broker  to  sell  land  for  another,  in 
consideration  of  a  stipulated  commission,  when  the  broker  pro- 
duces a  purchaser  willing  and  able  to  comply  with  the  terms  of 
the  sale  and  nn  agreement  is  entered  into  between  the  purchaser 
and  the  vendor  which  terminates  in  an  actual  transfer  of  the 
title,  or  when  the  agent  has  performed  the  services  required  of 
him  and  the  vendor  and  purchaser  enter  into  an  enforceable 
contract ;  the  word  ' '  sold ' '  not  necessarily  meaning  that  a  con- 
veyance must  be  made,  or  that  the  title  must  pass.  Sanderson 
V.  Wclhford  (Tex.  Civ.  App.  '09), 116  S.  W.  382. 


tLEADESTGS,   PRACTICE,    ETC.  619 

Sec.  1113.    Distinction  between  the  rules  of  law  applicable 
to  a  consummated  and  an  unconsummated  contract  of  sale. 

Y»nere  the  agreement  for  the  sale  or  exchange  of  real  property 
has  been  consummated  by  an  actual  execution  of  a  written  con- 
tract therefor,  in  the  absence  of  a  stipulation  to  the  contrary, 
the  broker's  commissions  are  earned  when  the  contract  is  signed 
by  the  client,  and  a  defect  in  the  title  becomes  unimportant  and 
constitutes  no  defense  to  the  payment  of  commissions ;  but  where 
it  is  sought  to  recover  commissions  for  services  rendered  in 
attempting  to  effect  a  proposed  exchange  of  real  property, 
which  was  not  carried  out,  no  written  contract  having  been 
signed  between  the  parties  to  the  exchange,  it  must  be  shown 
that  the  customer  produced  was  the  owner  of  the  property  offered 
for  exchange,  as  well  as  that  after  the  terms  of  the  exchange 
had  been  agreed  upon  the  client  refused  to  carry  them  out. 
Mutchnick  v.  Davis,  114  N.  Y.  S.  997. 

Defendant  having  denied  that  he  ever  agreed  to  exchange  the 
property,  the  rule  that  objections  to  title  and  to  completing  a 
contract  for  the  sale  or  exchange  of  real  property  not  specified 
during  the  negotiations  are  deemed  to  have  been  waived  does 
not  apply.    Id. 


Sec.  1114.     Construction  of  contract  between  brokers  for  com- 
missions. 

Plaintiffs  agreed  with  defendant  to  assist  him  in  •  procuring 
for  sale  on  commission  lands  in  IT.  County,  and  in  making  sales 
for  defendant  plaintiffs  were  tq  receive  one  dollar  an  acre  on 
the  land  previously  listed  by  defendant,  and  one-half  of  the  com- 
missions on  the  sale  of  any  lands  subsequently  listed  by  either  of 
the  parties.  Held,  that,  if  either  of  the  plaintiffs  rendered 
any  assistance  in  listing  land  that  was  subsequently  sold  by 
either  plaintiffs  or  defendant,  plaintiffs  were  entitled  to  com- 
pensation at  the  rate  of  one  dollar  per  acre,  if  the  land  sold  had 
been  previously  listed  by  defendant;  otherwise,  to  one-half  the 
commissions  received  on  the  sale.  Judgment  19  S.  D.  525,  104 
N.  "W.  247  reversed  on  error.  Dickinson  v.  Ilahn  (S.  D.  Sup.  '09) 
119  N.  W.  1034. 


620  AMERICAN   LAW   REAL   ESTATE   AGENCY. 

Sec.  1115.    Construction  of  broker's  contract  for  commissions. 

Defendants,  who  had  platted  a  subdivision,  contracted  with 
plaintiff  for  the  sale  of  the  lots,  giving  him  the  exclusive  right 
of  sale  for  six  months.  Plaintiff  was  to  exercise  reasonable  dili- 
gence to  sell  the  property  within  the  time  specified.  Defendants 
were  to  receive  the  proceeds  until  they  amounted  to  $2,300,  after 
which  the  proceeds  were  to  be  divided  with  plaintiff  as  compen- 
sation for  his  services;  and  if  there  should  be  anj'^  unsold  lots, 
after  defendants  had  received  $2,300,  an  undivided  quarter  in- 
terest was  to  bo  conveyed  to  plaintiff.  Held,  that  the  provision 
requiring  the  defendants  to  convey  a  part  of  the  unsold  lots, 
being  only  a  part  of  the  consideration,  was  independent  of  the 
provision  requiring  the  plaintiff  to  exercise  reasonable  diligence 
to  sell  all  the  lots,  and  upon  selling  $2,300  worth  of  lots,  he  was 
entitled  to  the  share  of  the  proceeds  of  subsequent  sales  within 
the  contract  period,  and  also  to  a  conveyance  of  a  one-fourth 
interest  in  the  unsold  lots.  Mitchell  v.  Rushing  (Tex.  Civ.  App. 
'09),  118  S.  W.  582. 

Sec.  1116.     Contract  held  to  be  divisible  and  not  entire. 

A  contract  with  a  broker,  after  providing  the  amount  of  the 
commissions  to  be  paid  on  sales  as  made,  recited  that  the  com- 
missions were  "to  become  due  on  one-quarter  payment  of  the 
selling  price  of  any  piece  of  land  sold."  Held,  That  the  con- 
tract was  apportionable,  and  not  entire,  contemplating  that  when- 
ever a  payment  was  made  amounting  to  2.5  per  cent,  or  more  of 
the  selling  price  of  a  tract  of  land  sold,  the  commission  on  the 
sale  became  due  and  payable.  Tilton  v.  James  L.  Gates  Land  Co. 
(Wis.  Sup.  '09),  121  N.  W.  331. 

Sec  1117.  Construction  defining  the  word  "list"  in  contracts 
with  brokers  for  the  sale  of  real  estate. 
A  contract  by  a  real  estate  broker  to  "list"  real  estate,  is  not 
satisfied  by  merely  taking  a  description  of  the  real  estate  by 
the  broker,  but  the  most  restricted  construction  of  the  word 
"list"  would  at  least  require  that  some  mention  of  the  real  estate 
should  appear  in  some  of  the  broker's  pamphlets  advertising  the 
property  for  sale,  and,  in  tlie  absence  of  such  listing,  the  broker 
could  not  recover  commissions  provided  in  case  of  withdrawal 


PLEADINGS,  PRACTICE,  ETC.  621 

of  the  land  by  the  owner.    F.  A.  Strout  Co.  v.  Gay  (Me.  Sup. 
'09),  72  A.  881. 

Sec.  1118.     Gonstraction  of  contract  to  pay  commissions  to 
broker. 

In  an  action  for  commissions  on  a  contract  by  Avhich  plaintiff 
was  employed  to  sell  lots  at  private  sale  or  public  auction,  "col- 
lect all  first  moneys,"  and  do  certain  other  things,  the  question 
was  whether  plaintiff  was  entitled  to  commissions  on  defaulting 
contracts  of  sale,  and  the  case  was  submitted  on  an  agreed  state- 
ment reciting  the  amount  of  commissions  accruing  "on  defaulted 
contracts  of  sale  with  purchasers  at  the  auction  sale  *  *  * 
and  no  part  of  which  has  been  or  will  be  received, "  and  that  plain- 
tiff claims  right  to  the  commissions,  "regardless  of  subsequent 
defaults  of  contracting  parties."  Held,  that  there  was  nothing 
to  show  that  as  to  sales  in  which  default  was  made,  there  was 
any  "first  money"  to  be  paid,  in  the  absence  of  provision  for 
which  the  auction  sale  was,  under  the  Civil  Code,  Sees.  1793, 
1798,  complete  when  the  auctioneer  announced  the  lots  were 
sold,  and  entered  minutes  of  the  sale  in  his  sale-book,  and 
nothing  to  show  that  if  there  was  provision  for  "first  money," 
it  was  not  collected  by  plaintiff,  the  recited  failure  of  receipts 
being  capable  of  being  referred  solely  to  subsequent  default 
payments,  and  that  no  presumption  as  to  the  existence  of  such 
a  provision,  or  as  to  the  failure  of  plaintiff  to  collect  "first 
money,"  if  there  was  a  provision  therefor,  could  be  made,  so 
as  to  defeat  plaintiff's  right  of  recovery  in  the  absence  thereof; 
the  contract  not  making  it  a  guarantor  of  payments  of  the 
purchase  price  on  sales  made  by  it.  Benedict  v.  Wilson  (Cal. 
App.  '09),  103  P.  350. 

Sec.  1119.     Construction  of  contract. 

F.  &  J.  were  agents  for  H.  for  the  sale  of  real  estate.  IT. 
had  sold  certain  lands  to  G.  F,  acting  as  agent  for  G.  sold  his 
lots  to  plaintiff,  who  paid  down  $200.  The  contract  provided 
that  it  was  made  subject  to  the  owner's  acceptance.  An  in- 
cumbrance upon  the  title  was  discovered,  and  a  demand  for  its 
removal  was  refused.  The  contract  was  then  presented  to  G. 
for  approval,  and  upon  his  refusal  to  approve,  a  demand  was 


622  AMERICAN    LAW   REAL   ESTATE   AGENCY. 

made  for  the  return  of  the  down  payment,  which  was  also 
refused.  Plaintiff  alleged  that  II.  was  the  owner  of  the  lot, 
and  that  F.  in  making  the  sale  and  receiving  the  money  acted 
for  H.  Held,  That  the  fact  that  F.  was  the  agent  of  H.  for 
the  sale  of  the  lots,  is  not  evidence  that  he  was  acting  other  thah 
as  agent  for  G.  in  negotiating  the  sale  to  plaintiff,  since  F.  had 
no  connection  with  J.,  each  maintaining  separate  relations  with 
H. ;  that  the  payment  to  F.  was  not  a  payment  to  either  H.  or 
J.,  neither  of  whom  had  any  connection  with  the  sale  to  plaintiff, 
and  there  can  be  no  recovery  except  from  F.  or  his  principal  G. 
Jones  V.  Jones  (Wash.  Sup.  '09),  104   P.  786 

Sec.  1120.    Construction  of  contract. 

A  contract  between  a  land  owner  and  a  real  estate  agent  gave 
the  agent  the  exclusive  sale  of  the  land  for  ten  years  at  such 
prices  as  he  might  deem  best,  provided  that  no  tract  should  be 
sold  at  less  than  the  value  named  in  the  schedule  attached.  Out 
of  the  proceeds  of  the  sales  a  stipulated  amount  was  to  be  paid 
to  the  owner,  and  the  balance  equally  divided  between  the 
parties  to  the  contract.  Held,  that  the  agent  had  the  sole  right 
to  fix  the  selling  price,  provided  it  was  not  less  than  the  schedule 
value,  and  that  the  owner  could  not  arbitrarily  refuse  to  approve 
a  sale  for  the  reason  that  the  price  was  not  satisfactory  to  him. 
Young  v.  Metcalf  Land  Co.  (N.  D.  Sup.  '09),  122  N.  W.  1101. 

Sec.  1121.     Construction  of  contract. 

A  contract  for  the  exchange  of  property  made  by  plaintiff, 
and  a  purchaser  whom  defendants  had  procured,  provided  that 
to  bind  the  contract  the  purchaser  had  deposited  with  defend- 
ants a  deed  executed  to  plaintiffs,  and  that  plaintiffs  had  paid 
to  defendants  $500;  if  the  purchaser  failed  to  perfect  his  title 
to  the  tract  conveyed  by  the  deed  it  should  pass  in  accordance 
therewith  in  settlement  of  commissions  and  liquidated  damages. 
When  defendants  learned  that  the  purchaser  refused  to  per- 
form they  asked  plaintiffs  if  they  should  send  such  deed  for 
record  where  the  land  was  situated;  but  plaintiffs  replied  that 
they  would  think  about  it,  and  after  defendants  had  held  the  deed 
two  days  without  receiving  instructions,  they  sent  it  to  plaintiffs, 


PLEADINGS,  PRACTICE,  ETC.  623 

who  did  not  have  it  recorded  for  three  months.  The  purchaser, 
in  the  meantime,  had  sold  the  tract  to  one  who  recorded  his 
deed  prior  to  the  recording  of  plaintiffs'  deed.  Held,  That 
plaintiffs'  failure  to  have  the  deed  recorded  in  time  was  through 
their  own  fault,  and  would  not  prevent  defendants  from  recov- 
ering their  commissions  from  plaintiffs  for  procuring  a  pur- 
chaser. Lewis  V.  Mansfield  G.  &  F.  Co.  (Tex.  C.  A.  '09),  121 
S.  W.  585. 


Sec.  1122.    Construction  of  contract. 

Defendants  agreed  to  procure  a  purchaser  for  plaintiffs'  prop- 
erty, and  procured  one  with  whom  plaintiffs  executed  a  written 
contract,  which  provided  that  to  bind  the  contract  the  purchaser 
had  deposited  with  defendants  a  warranty  deed  to  a  certain  tract, 
part  of  the  property  to  be  exchanged,  and  that  plaintiffs  had 
paid  to  them  $500,  and,  if  the  title  should  prove  defective  upon 
examination,  the  sum  deposited  and  the  deed  should  be  returned 
to  the  respective  parties,  but  if  the  title  proved  good  and  the 
purchaser  failed  to  perform,  his  title  to  the  tract  mentioned 
should  pass  to  the  plaintiffs  according  to  the  deed  deposited  with 
defendants,  in  settlement  of  commissions  and  liquidated  dam- 
ages, and  if  plaintiffs  failed  to  perform,  the  $500  should  be 
forfeited  in  payment  of  commissions  and  liquidated  damages, 
and  if  both  parties  failed  to  perform,  the  purchaser  authorized 
plaintiffs  to  convey  to  defendants  the  tract  above  mentioned  to 
secure  to  them  the  payment  of  the  $500  as  commissions,  and  that 
such  sum  should  be  forfeited  to  defendants  as  commissions  and 
liquidated  damages.  Held,  that,  even  if  defendants  were  bound 
by  the  contract  between  plaintiffs  and  the  purchaser,  it  did  not 
make  their  commissions  depend  upon  the  consummation  of  the 
exchange,  but  upon  the  approval  of  the  titles  of  the  properties ; 
nor  did  it  require  defendants  to  look  to  the  purchaser  for  their 
commissions  if  he  breached  his  contract  with  plaintiffs,  they 
being  bound  to  pay  the  commissions  in  such  case,  as  the  pur- 
chaser's title  to  the  contract  mentioned  passed  to  the  plaintiffs 
in  accordance  with  the  deed  deposited  with  defendants.    Id. 


624  AMERICAN    LAW   REAL   ESTATE    AGENCY. 

Sec.  1123.    Definition    in    broker's    contract    of    the    word 
"amount." 

Plaintiff,  a  broker,  wrote  defendant  asking  what  he  would 
take  for  his  land,  including  the  stock  and  a  five  per  cent,  com- 
mission. Defendant  replied  that  "$22,500,  your  commission 
$1,112.50;  this  amount  will  buy  the  place."  Held,  that  the 
word  ' '  amount ' '  referred  to  the  total  of  the  two  sums  mentioned 
by  defendant;  the  word  being  defined  by  Webster  as  "the  sum 
total  of  two  or  more  particular  sums  or  quantities,  as  the  amount 
of  7  and  9  is  16."  Smith  v.  Fears  (Tex.  C.  A.  '09),  122  S.  W.  433. 

Sec.  1124.    Interpretation  of  broker's  authority  to  sell  a  plan- 
tation. 

Plaintiff  sues  defendant  for  commissions  alleged  to  be  due 
him  as  selling  agent  of  a  certain  plantation.  Defendant  resists, 
on  the  ground  that  the  sending  forward  by  himself  of  a  power 
of  attorney  to  plaintiff  was  a  mere  "offer"  of  an  agency,  and 
that  before  it  was  accepted  he  withdrew  his  lands  from  the 
market ;  that  in  the  power  of  attorney  sent  forward  it  was  agreed 
and  understood  that  no  sale  could  or  should  be  made  until  after 
the  prospective  buyer  had  a  conference  with  him  and  had  satis- 
fied him  as  to  his  financial  ability,  and  that  he  himself  should 
be  present  at  -the  sale  to  receive  the  cash  and  notes ;  that  when 
the  prospective  purchaser  in  this  instance  (with  whom  plaintiff 
as  agent  had  entered  into  a  written  promise  of  sale  of  the  land) , 
presented  himself  at  Natchez,  he  did  not  put  him  (defendant) 
in  default  for  non-execution  of  the  promise:  Held,  the  defenses 
urged  are  not  well  founded.  The  sending  forward  of  the  power 
of  attorney  was  not  the  initial  step  in  the  matter  of  agency.  It 
was  in  fact  accepted  by  plaintiff's  offer  to  take  the  agency.  If 
an  acceptance  was  necessary  it  was  accepted  by  letter  and  by 
action  within  the  time  that  the  situation  of  the  parties  and  the 
nature  of  the  contract  showed  it  was  the  intention  of  the  de- 
fendant to  allow.  The  notice  of  the  withdrawal  of  the  land 
from  market  was  a  recognition  of  the  pre-existing  agency  of 
the  plaintiff.  This  withdrawal  was  after  the  plaintiff  and  the 
prospective  buyer  had  started  to  meet  defendant  at  Natchez,  and 
there  was  no  necessity  for  putting  the  defendant  in  default ;  he 
had  himself  put  an  end  to  the  agency,  and  had  placed  it  out 


PLEAIHNGS,    PRACTICE,    ETC.  625 

of  his  power  to  carry  out  the  promise  of  sale ;  he  had  withdrawn 
from  the  prospective  purchaser  an  opportunity  to  show  his  good 
faith  and  ability  to  purchase.  Lucket  Land  &  E.  Co.  v.  Brown, 
118  La.  943,  43  S.  628. 

Sec.  1125.    Law  requiring  contract  employing  broker  to  sell 

land  to  be  in  writing  not  retroactive. 

Laws  1905,  p.  110,  c.  58,  requiring  a  contract  for  payment  of 

commissions  to  a  broker  for  the  sale  of  land  to  be  in  writing,  is 

not  retroactive.    Dean  v.  Williams  (Wash.  Sup.  '10),  106  P.  130. 

Sec.  1126.  Construction  of  term  "title  satisfactory  to  pTir>- 
chaser." 
"Where  a  contract  for  the  sale  of  land  calls  for  a  title  satis- 
factory to  the  purchaser,  he  has  no  arbitrary  right  to  refuse 
the  title  offered,  but  it  means  that  the  vendor  must  furnish  a 
good,  marketable  title.     Id. 

Sec.  1127.  Construction  of  broker's  contract  and  defining  the 
word  "timber." 
Where  a  broker's  contract  employed  him  to  purchase  timber 
options  for  a  percentage  of  the  net  profits  from  the  sale  of  the 
timber,  and  certain  land  was  purchased  in  order  to  obtain  the 
timber  thereon,  the  word  "timber"  in  the  contract  of  employ- 
ment could  not  be  extended  to  include  the  land,  so  as  to  entitle 
the  broker  to  a  percentage  of  the  net  profits  of  the  sale  of  the 
land,  as  well  as  the  timber.  Wilson  v.  tf antes  (Wash.  Sup.  '10), 
106  P.  618. 

Sec.  1128.    When  law  of  place  of  performance  governs  in  in- 
terpretation of  contract. 

The  place  where  a  contract  is  made  governs,  as  a  general 
rule,  the  performance  of  its  terms;  but  when  it  is  the  express 
intention  of  the  parties  that  the  contract  is  to  be  performed  at 
a  different  place,  and  under  a  different  jurisdiction  from  the 
place  where  it  is  made,  the  law  of  the  place  of  performance 
governs.    Benedict  v.  DaJcin  (111.  Sup.  '09)  90  N.  E.  712 


626  AMERICAN    LAW   AND   REAL   ESTATE   AGENCY. 

Sec.  1129.    Law  of  place  of  performance  of  contract  governs 
as  to  compensation. 

"Where  a  contract  employing  a  broker  to  procure  a  purchaser 
of  real  estate  in  Louisiana  did  not  fix  the  compensation,  but  it 
appeared  that  the  contract  was  made  in  Louisiana,  without  any- 
thing to  indicate  that  the  parties  contemplated  a  performance 
elsewhere,  and  the  sale  was  consummated  there,  the  law  of  Lou- 
isiana governs  as  to  the  amount  of  the  compensation,  which  must 
be  determined  by  the  customary  commissions  paid  for  like  serv- 
ices in  that  State.  Benedict  v.  Dakin  (111.  Sup.  '09),  90  N. 
E.  712. 

Sec.  1130.  Definition  of  term  "pecuniarily  able"  in  broker's 
contract  of  employment. 
The  term  ''pecuniarily  able,"  used  with  reference  to  the 
financial  condition  of  the  proposed  purchaser  procured  by  an 
agent  of  the  vendor,  does  not  mean  that  such  purchaser  must 
necessarily  have  all  the  money  in  his  pocketbook  or  to  his  credit 
at  the  bank,  but  that  he  is  able  to  command  the  necessary  money 
to  close  the  deal,  on  reasonable  notice  or  within  the  time  limited 
by  the  vendor,  if  a  time  be  limited.  McCahe  v.  Jones  (Wis. 
Sup.  10),  124  N.  W.  486. 

Sec.  1131.    When  interpretation  of  contract  is  for  the  court, 
when  a  question  of  fact  for  the  jury. 

The  interpretation  of  writings  is  for  the  court,  where  they  are 
are  unambiguous,  or  where  they  are  ambiguous  in  their  terms  and 
the  ambiguity  can  be  resolved  by  reference  to  other  parts  of  the 
writing  or  uncontroverted  circumstances ;  but  where  the  terms 
of  the  writing  are  ambiguous,  and  the  intention  of  the  parties 
cannot  be  ascertained  without  resorting  to  extrinsic  facts  which 
are  controverted  or  unconceded,  intention  is  a  question  of  fact 
for  the  jury.  Big  Four  B.  B.  Co.  v.  Clark  (Mo.  App.  '09),  123 
S.  W.  95.    See  Sec.  906. 


INDEX. 

[References  are  to  sections.] 


Abatement  of  price,  315. 

Abbreviations,  18,  48. 

Abandonment  of  employment,  292,  761b,  1078d. 

Abandonment  by  purchaser  of  contract  of  purchase,  292. 

of  negotiations  a  question  for  jury,  923. 
Abstracts  of  title.     See  Title. 
Acceptances,  567. 
Acceptance  of  service,  646. 
Accord  and  satisfaction,  562. 
Accounting,  404,  421a,  559,  630. 
Acquiescence,  143,  515a,  560,  618. 

See  also  Waiver. 
Actions  for  commissions,  184,  210,  218,  236,  588,  632a. 

for  breach  of  contract,  563. 

of  tort,  40,  414. 

by  purchaser  against  vendor,  40. 

of  assumpsit,  629,  572. 

between  principals  and  agents,  630. 
Act  which  broker  cannot  sub-delegate,  5. 

to  dispossess,  and  what  purchaser  may  show  in  defense.  689a. 

See  also  Petitions.     For  Damages,  see  299. 
Administrators  and  executors,  5,  34,  198,  280,  456,  557. 
Advances,  282,  290,  291,  295,  314,  565. 
Adverse  interests.    See  Interests,  Adverse. 

Advertising  and  advertisements.  20,  24,  30,  37,  128,  561,  605,  733a,  733,  963. 
Advice  of  third  party  immaterial,  809b. 

as  to  liability  made  by  broker  erroneous,  529. 
Afterthought,  as  to  whether  defence  was,  a  question  for  jury,  920a. 
Agency,  general  and  special,  6,  356. 

several  instances  of  special  do  not  make  a  general,  6. 

duration  of,  14. 

exclusive,  13,  22,  42,  328c,  439,  563,  897,  1084. 

termination  of  the,  15,  137,  314,  454,  1031. 

627 


628  INDEX. 

[References  are  to  sections.] 

Agency,  after  death,  single  letter  insufficient  to  establish,  46. 

contract  to  take  as  commission  excess  over  net  price  an,  82. 

exercifa  of  option  revokes  contract  of,  89. 

not  affected  by  agent  taking  title  bond,  99. 

established  by  correspondence,  17,  738. 

contract  of  and  not  an  option,  1083. 
Agent  or  agents.     See  also  Bbokeb.  "     . 

who  are  capable  of  becoming,  1. 

power  of  delegating  authority,  2,  987. 

inherent  power  of  becoming,  3. 

personal  acts  of  undelegatable,  4. 

acts  that  cannot  be  sub-delegated,  5,  26. 

special  and  general,  6,  356. 

who  arc  deemed  brokers,  7. 

who  are  not  brokers,  8. 

without  authority  to  employ  a  broker  to  sell,  11. 

exclusive  employment  as,  13,  61. 

authority  conferred  on,  18. 

revocation  of  authority  granted  to,  22. 

how  deeds  should  be  executed  by,  58. 

principals  and,  34,  36,  51. 

of  insurance  company,  broker  obtaining  loan  from  not,  71. 

signature  of  principal  by,  74,  75,  76. 

of  owner,  when  telegraph  company  is  not,  80. 

of  seller,  broker  who  took  option  to  buy  is  not,  88. 

taking  title  bond  does  not  affect  agency,  99. 

styling  himself  agent  for  others  bound  himself,  168 

acts  governed  by  rules  applicable  to  trustees,  311. 

of  both  parties,  middleman  is  common,  578. 
Agreement  to  s^ll,  a  mere  option,  90. 
Alterations  in  written  instruments,  55,  73,  175,  293,  314,  485,  1010,  1039, 

nil. 

Alabama,  contracts  for  the  sale  of  lands  must  be  in  writing,  790. 
Amendments,  111,  667-674. 
Ambiguous  contracts,  49. 
Apportionment,  453,   1116. 
Appropriation  of  broker's  services,  24. 

of  benefits  ratifies,  24,  216. 
Appraise,  broker  entitled  to  commission  on  principal's  refusing  to,  434. 
Approval,  contract  of  sale  subject  to  principal's,  47. 

when  silence  equivalent  to,  24. 
Arbitrarily  refusing  to  accept  lease,  197. 
Arkansas,  contract  for  sale  of  lands  must  be  in  writing,  79b. 
Architects,  31,  770,  1027. 

Assignees  and  assignments,  28,  290,  572,  745,  817. 
Aaaumpsit.     See  Action  of. 


INDEX.  629 

[References  are  to.  sections.] 

Attorney  in  fact,  27,  76,  905. 

at  law,  18,  26,  29,  251,  314. 
Attendance  at  public  sale,  41. 

Auctioneer,  agreement  with  to  sell  need  not  be  written,  605. 
Auctions  and  auctioneers,  30,  138,  305,  576,  972. 
Authority,  power  of  delegating,  2. 

involving  discretion  undelegatable,  5. 

conferred  on  brokers  and  agents,  10,  18,  239,  255. 

agent  cannot  bind  principal  by  employing  broker  to  sell  without,  11. 

revocation  of,  22,  57.  . 

to  two  or  more  to  do  act,  all  must  unite,  26. 

broker  cannot  effect  a  sale  without,  18,  127. 

deed  ineffectual  to  set  aside,  57. 

to  sell,  advertisement  on  land  ineffectual  to  imply,  18,  128. 

to  find  purchaser  gives  no  right  to  sell,  129. 

sale  at  $500,  after  asking  lower  terms,  without,  135. 

sale  by  broker  without  written  upheld,  140. 
.'  power  to  do  all  things  concerning  real  estate  confers  power  to  lease,  205. 

contracts  in  excess  of,  307,  307a,  307b,  307c,  314,  392b,  40,  458,  1060. 

to  village  to  sell  bonds  includes  to  employ  broker,  281. 

of  broker,  improvement  of  property  beyond,  324. 

broker  to  sell  cannot  license  to  cut  timber,  330. 

to  locate  and  survey,  not  power  to  sell,  339. 

of  agent  construed  to  sell,  but  not  to  convey,  337a.  -j 

broker  to  make  written  cannot  make  oral  contract,  365. 

broker  not  entitled  to  commission  on  contract  not  conforming  with  his 
instructions,  363a. 

broker  under  oral  cannot  bind  by  written  covenant,  364. 

of  agent  presumed  from  undisputed  possession  for  years,  366. 

to  make  repairs  does  not  warrant  permanent  improvements,  372. 

to  collect  rent  cannot  employ  broker  to  sell,  381. 

sub-agent  exceeding  bars  commissions,  392. 

broker  selling  lower  than  bars  commissions,  408. 

terms  of  cannot  be  varied,  409. 

half-cash  complied  with  by  sale  for  all,  410. 

half-cash  and  remainder  on  time,  cannot  sell  for  all  cash,  410a. 

negotiations  of  broker  without  not  ratified  by  sale,  415. 

to  sell  for  a  fixed  sum  binding,  422. 

to  sell  for  specified  sum  is  for  cash  only,  422a. 

broker  entitled   to  commissions,  though  principal   paid  more  than  he 
expected,  505. 

if  revocable,  broker  finding  after  not  entitled  to  commissions,  516. 

revocation  of  entitles  sub-agent  to  commissions  on  sale  made  after,  521. 

to  sell  not  implied  by  broker  putting  advertisement  on  land,  561. 

of  broker  to  require  owner  to  furnish  abstract  of  title,  597. 

when  contract  must  be  in  writing,  without  unenforceable,  602. 


630  INDEX. 

[References  are  to  sections.} 

Authority,  of  broker  a  question  for  tlie  jury,  1019. 

of  broker  to  sell  plantation,  1124. 
Avoid  a  contract,  issue  must  be  presented  by  pleadings.  871a. 

B 

Banks,  50,  244,  328p. 

Belief  of  evidence,  instruction  to  jury  ignoring  erroneous,  949,  1038 

Beneficiaries,  broker  cannot  charge  commissions  to,  442. 

Benefits,  principal  receiving  bound  by  fraud  of  agent,  315. 

principal  receiving  ratifies,  557. 
Betrayal  of  trust,  295. 
Bidders,  41,  217,  395,  441. 

Bonds,  38,  276,  277,  278,  279,  280,  281,  3280,  658,  574,  652. 
Books,  763. 

Boot,  exchange  for  a  certain  amount  to,  185. 
Borrower,  243,  256,  328,  566,  630,  787. 
Bound,  broker  by  first  charge  for  commissions  and  cannot  increase,  211. 

principal  accepting  valuation  made  by  buyer,  416. 

by  election,  broker  to  look  to  purchaser  for  commissions,  425. 

each  purchaser  for  whole  commission  unless  mistake  pleaded,  579. 

owner  by  legitimate  effect  of  language  than  his  understanding  of  it, 
416a. 
Breach  of  contract.    See  Contract,  Bbkach  of. 
Broker.     See  also  Agent. 

he  cannot  delegate  certain  acts  to  another,  6. 

who  is  so  termed,  "^ 

who  is  not  a^  8. 

how  appointed,  10. 

employment  of  and  limitations,  12. 

to  be  assured  compensation  must  have  contract,  12.* 

exclusive  appointment  as,  13. 

authority  conferred  upon,  18. 

acting  openly  an.d  buying  vendor's  property,  40. 

has  a  right  to  give  part  of  commission  to  purchaser,  41. 

owner  not  required  to  inform  of  restrictive  covenant,  43. 

not  agent  of  insurance  company  in  securing  loan,  71. 

may  be  ■authorized'  by  parol  to  sell  or  lease  real  estate,  79a, 

sending  telegram^  company  not  agent  thereby,  80. 

to  eecuro  optiou  entitled  to  reasonable  commission,  83. 

employed  to  sell,  securing  mere  option,  85. 

finding  purchaser  entitled  to  compensation,  84. 

entitled  ta  commission  when  customer  exercises  option,  86. 

entitled  to  commission-,  though  principal  held  only  option,  87. 

who  took  option  ta  buy,  not  agent  to  sell,  88. 

who  sold  under  an  option  not  entitled  to  commission,  92. 


INDEX.  631 

[References  are  to  sections.] 

Broker — Continued. 

to  procure  loan,  not  entitled  to  commission  for  option,  93. 

to  secure  two  options,  principal  rescinds  one,  liable  for  breach,  102. 

not  entitled  to  commission  for  unexercised  option,  101. 

not  entitled  to  commission  for  securing  part  of  options,  103. 

obtaining  price  from  owner,  a  naked  option,  104. 

given  option  acting  as  a  purchaser,  105. 

given  option,  owner  estopped  to  claim  purchaser,  107. 

effecting  a  sale  entitled  to  commission,  113. 

entitled  to  more  commission  when  price  increased,  115. 

not  entitled  to  commission  for  nominal  sale,  116. 

entitled  to  commission,  though  sale  enjoined,  118,  469. 

must  effect  a  sale  to  earn  commission,  119. 

entitled  to  commission  on  withdrawal  of  land  from  sale,  120. 

not  entitled  to  commission  when  sale  fails  by  no  fault  of  principal,  122. 

not  entitled  to  commission  for  sale  by  wrong  description,  123. 

not  entitled  to  commission  for  forced  sale  with  joint  owner,  125. 

selling  to  resell  not  guilty  of  fraud,  126. 

without  authority  cannot  effect  a  sale,  127. 

placing  advertisement  on  land  does  not  imply  right  to  sell,  128. 

authority  to  find  purchaser  none  to  make  sale,  129. 

buying  at  inadequate  price  by  fraud,  sale  set  aside,  130. 

becoming  purchaser  unknown  to  principal  sale  set  aside,  131. 

contract  to  pay  commission  on  effortless  sale  upheld,  132. 

may  be  required  to  make  sale  to  earn  commission,  133,  136. 

selling  for  less  than  authorized  not  entitled  to  commission,  134, 

selling  for  $1,500,  after  asking  lower  terms,  unauthorized,  135. 

sale  by  one  of  rival,  ends  contract  with  others,  137. 

whether  entitled  to  commission  for  both  auction  and  private  sale  a 

question  for  the  jury,  138. 
selling  property  acquired  from  principal  liable  for  profit,  139. 
authorized  to  sell  without  written  authority,  140. 

second  selling  to  client  of  first,  latter  not  entitled  to  commission,  141. 
sale  by  owner  before  sale  by  bars  commission,  142. 
acquiescence  in  disagreement  bars  commission,  143. 
selling  for  cash  on  execution  of  deed,  144. 
selling  contract  of  sale  entitled  to  commission,  145. 
to  recover  commission  for  sale  of  public  land  must  show  what,  146. 
failing   to    sell    customer,    owner    succeeding,   broker   not   entitled    to 

commission,  148. 
effecting  an  exchange  entitled  to  commission,  150. 
effecting    exchange,    though    other    property    substituted,    entitled    to 

commission,  151. 
entitled  to  commission  where  principal  receives  good  title  in  exchange, 

152. 
must  show  customer  able  to  make  exchange,  to  earn  commission,.  163. 


632  INDEX. 

IReferences  are  to  Sections.] 

Broker — Continued. 

to  recover  commission  for  exchange  failing  by  defect  in  title  must  show 

good  faith,  156. 
does  not  earn  commission  by  irresponsible  customer  to  exchange,  157. 
without  employment  not  entitled  to  commission  for  exchange,  162. 
commission  paid  broker  may  be  recovered  from  party  in  default,  163. 
not  liable  for  misrepresentation  made  in  good  faith,  165. 
employed  by  opposite  party,  error  to  prevent  defendant  showing,  166 
who  did  nothing,  owner  making  exchange,  not  entitled  to  commission,  169. 
entitled    to    commission    where    exchange    wrongfully    broker;    off    by 

principal,  170. 
for  commission,  has  no  interest  or  title  in  properties  exchanged,  172. 
when  ofler  to  pay  does  not  show  employment  of,  173. 
agreement  to  wait  for  earned  commission  without  consideration,  174. 
•  effecting  exchange  entitled  to  commission,   though   terms  changed  by 

parties,   175. 
not  entitled  to  commission  where  exchange  defeated  by  lease,  177. 
interfering  not  entitled  to  commission  for  effecting  exchange,  178. 
not  entitled    to   commission   where    exchange    defeated   by   failure   to 

furnish  abstract  of  title,  179. 
entitled  to  commission  when  purchaser  can  give  title  to  property  jn 

exchange,  180. 
not  entitled  to  commission  for  mistake  in  describing  property,  181. 
not  entitled  to  commission  on  failure  of  conditional  agreement,  182. 
not  entitled  to  commission  where  misrepresentation  defeated  exchange, 

.   -183;  : 

effect inig/exchanjge   for    amount   to   boot,   entitled   to    commission   on 

whole  value,  185. 
,    .'/entitled  to  commission  on  effecting  binding  contract  of  exchange,  186. 
entitled  to  commission  on  producing  one  willing  to  exchange,  188. 
failing  to  .consummate  exchange,  proof  necessary  to  recover  commission, 

189. 
earns  commission  when  both  parties  agree  on  terrhs  of  exchange,  191. 
right  to  commission  not  affected  by  failure  of  one  party  to  perform,  192. 
right  to  commission  defeated  by  failure  to  secure  transfers  in  exchange, 

193. 
not  entitled  to  commission  where  party  shows  bad  faith,  195. 
value  of  services  of  in  negotiating  leases,  196. 
.     right  to  commission  for  negotiating  lease,  what  does  not  defeat,  197. 
to  sell  securing  contract  to  lease  does  not  earn  commission,  198. 
charge  properly  refused  that  no  leases  are  made  without,  201. 
of  lessee  secretly  securing  renewal  to  himself,  holds  as  trustee,  203. 
entitled  to  commission  for  securing  lessee,  204. 
to  earn  commission  must  negotiate  lease  his  principal  can  perform, 

204a. 
securing  tenant's  waiver  of  privilege  of  renewal  binds  principal,  208. 


INDEX.  633 

{References  are  to  sections.] 

Broker — Continued.  ••     - 

,:        employed  to  collect  rents,  not  entitled  to  conamissioh  for  securing  Jeaee, 

207. 
4  ;      for  tenant  has  no  claim  on  lessor  for  commission,  208. 

to  secure  lessee  not  entitled  to  commission  for  option,  209. 
in  action  by  for  commission,  owner  can  show  lease  to  another,  210. 
boun(^  by  first  claim  for  commission  and  cannot  increase  amount,  211. 
securing  lease  for  five  years,  sale  at  second,  loses  remaining  commission, 

^12.    . 
^;        oral  assent  to  subletting  unavailing  where  forbidden,  213. 

contract  with  ended,  lease  by  owner,  not  entitled  to  commission,  214. 
bringing  about  a  sale  or  lease  entitled  to,  commission,  215,  491. 
not  entitled  to  commission  where  sale  of  lease  frustrated  by  lessor,  216. 
not  entitled  to  commission  where  lessor  refused  to  make  lease,  216a. 
not  entitled  to  commission  where  lease  to  highest  bidder,  and  broker 

preventing,  217. 
to  secure  lease  for  eight  years,  must  do  so  to  earn  commission,  220. 
secret  understanding  of  with  tenant  does  not  affect  principal,  221. 
one  employing  to  obtain  loan  liable  for  commission,  222. 
to  be  paid  commission  from  proceeds,  not  entitled  where  loan  refused 

for  bad  title,  223. 
does  not  earn  commission  where  lender  refused  to  consummate  loan,  224, 
not  entitled  to  commission  for  securing  conditional  loan,  225. 
_:        to  recover  commission  for  loan  must  show  on  same  terms,  226. 
,  .   held  entitled  to  commission  for  procuring  loan,  226a. 

reasonable  value  of  services  in  procuring  loan  may  be  shown,  228. 
j         liable  for  loss  of  loan  on  insufficient  security,  229. 

bound  to  make  good  money  lost  through  his  negligence,  230,  349. 
for  seller  obtaining  loan   to  buyer,   not  entitled  to  commission  from 
.;  latter,  232. 

BEAL  ESTATE  AGENCY  Barney  nE..J.2Iito 

procuiing  loan  for  less  accepted,  entitled  to  commission,  233,  429. 
entitled  to  commission  on  finding  lender,  234. 
barred  commission  for  not  reporting  loan,  235,  431. 
in  action  for  commission  not  necessary  to  prove  tender,  236. 
agency  in  making  loan,  237. 
release  of  judgment  by,  238. 

authority  to  provide  mortgage  for  loan  confined  to  land  designated,  239. 
entitled   to   commission    where   lender    refused   after    principal,    cured 

defect  in  title,  to  make  loan,  240. 
charging  more,  entitled  to  statutory  commission  for  loan,  241. 
entitled  to  commission   for   procuring  loan,   though   principal   refused 

to  take,  242. 
to  whom  borrower  paid  commission  his  agent,  243. 
not  agent  of  lender  by  money  in  bank  subject  to  liis  check,  244. 
not  entitled  to  commission  where  owner  himself  secures  loan,  245. 


634  INDEX. 

[ikeferehces  are  to  sections.] 

Broker — Continued, 

failing  to  secure  lOan,  princir>al  securing  from  same  party,  bars  com- 
mission, 247. 

to  examine  title  and  secure  loan,  barred  commission  on  failure  by 
defect  in  title,  248. 

losing  loan  through  wrong  dimensions  bars  commission,  241). 

error  to  grant  judgment  for  full  commission  where  loan  fails,  250. 

verdict  for  procuring  loan  set  aside,  252. 

loan  to  purchaser  on  other  property,  makes  seller's  his  agent,  254. 

agreement  as  to  commission  for  procuring  lease  question  for  jury,  253. 

to  procure  loan  not  authorized  to  collect  principal  or  interest,  255. 

held  agent  of  lender  and  not  af  borrower,  256. 

knowledge  as  to  mortgage  binding  on  principal,  258. 

selling  under  power  in  mortgage,  need  not  inform  mortgagor,  259. 

liable  for  loss  in  failing  to  record  mortgage,  260,  349. 

liable  for  loss  from  unpaid  mortgage,  261. 

not  entitled  to  charge  foreclosures  to  principal,  262. 

to  invest  money  confined  to  first  mortgages,  264. 

making  loan,  knowing  of  prior  mortgage,  principal's  sulwrdinated 
thereto,  265. 

whether  taking  mortgage  with  wrong  description  guilty  of  negligence, 
a  question  for  the  jury,  267. 

mortgage,  taken  by  lender  bound  by  fraud  of,  268. 

payment  on  mortgage  to  seller's  broker,  did  not  bind  mortgagee,  269. 

liable  for  negligence  in  failing  to  learn  liability  under  mortgage,  270,  349. 

liable  for  loss  in  taking  mortgage  on  other  and  not  on  land  sold,  271,  340. 

securing  conditional  sale  of  mortgage,  not  consummated,  not  entitled 
to  commission,  272. 

fraud  of  in  appropriating  money  to  pay  off  mortgages  273,  314. 

failure  of  purchaser  to  execute  mortgage,  barred  commission,  274,  556. 

deprived  of  commission  when  bonds  declared  illegal,  276. 

selling  bonds  entitled  to  commission  on  procuring  buyer  on  terms  pre- 
scribed, 277. 

not  entitled  to  commission  on  sale  of  bonds  on  buyer  withdrawing,  278. 

delivering  bonds  without  disclosing  principal  liable  if  void,  279. 

selling  bonds  in  good  faith  not  liable  to  trust  estate  because  sale 
illegal,  280. 

authority  to  village  to  sell  bonds,  includes  authority  to  employ,  281. 

has  lien  on  securities  in  his  hands  for  commission,  283. 

has  lien  for  fees  on  funds  in  hands  to  loan,  284. 

in  absence  of  contract  has  no  lien  on  fuhdsor  securities  of  principal,  285. 

where  has  lien,  it  exists  only  so  long  as  he  holds  property,  286. 

lien  confined  to  securities  affected,  287. 

has  no  lien  for  loan  on  trust  estate,  288.  '    "■! 

taking  excess  for  fee,  releasing  lien  falls  on  principal,  289.        -   • 

duty  of  to  employer  aiid  others,  290. 


INDEX.  635 

[References  are  to  sections.] 

Broker — Continued. 

concealment  and  its  effect  upon  rights,  291. 

conduct  of,  302. 

making  contract  in  excess  of  authority  binds  himself,  307,  307b. 

failure  of  to  report  ofler,  312. 

false  representations,  313. 

fraud  of  agent  against  principal,  314. 

fraud  cf  agent  against  third  persons,  315. 

fraud  of  principal  against  agent,  317. 

fraud  of  third  persons  against  agent,  318. 

debatable  acts  not  constituting  fraud,  320. 

selling  his  own  property  to  principal  set  aside,  321. 

when  he  is  and  when  not  liable  for  interest,  322. 

obtaining  interest  hostile  to  principal,  323,  382. 

improvement  of  property  beyond  authority  of,  324. 

neglecting  to  place  insurance  on  property  liable,  325. 

selling  without  express  agreement,  entitled  to  comnoiasion,  328m. 

to  sell  cannot  grant  license  to  cut  timber,  330. 

authority  construed  to  contract  to  sell  but  not  to  convey,  337a. 

buying  land-warrants  liable  for  value  of  land,  338. 

not  liable  for  mutual  mistake  as  to  power,  341. 

to  sell  can  take  nothing  but  money,  342. 

haB  no  right  to  receive  Mexican  money,  343. 

when  he  need  not  tell  principal  what  land  sold  for,  344. 

knowing  defect  in  principal's  title,  cannot  himself  acquire^  345. 

guilty  of  negligence  barred  commission,  346.^ 

contract  of  brokerage  not  set  aside  for  fraud,  348. 

departing  from  instructions,  liable,  350. 

when  not  liable  for  loss  on  forged  note,  351. 

when  not  authorized  to  collect  note,  352. 

having  note,  maker  may  pay  him,  353. 

has  no  power  to  receive  payments  on  note  before  dne,  354. 

to  collect  interest,  has  no  power  to  collect  principal,  355. 

doing  all  business  for  principal  may  collect  note   356; 

debtor  should  see  that  broker  has  security,  357. 

for  revocation,  no  sale  made,  entitled  to  nominal  damages,  358. 

how  notice  to  bind  principal  must  be  given,  359. 

on  finding  customer  to  buy,  must  give  principal  notice,  360. 

to  make  a  written  cannot  make  oral  contract,  363. 

not  entitled  to  commission  for  contract  not  conformable  to  authority, 

363a. 
under  oral  authority,  cannot  bind  by  written  covenants,  364. 
entitled  to  commission  where  purchaser  postpones  purchase,  365. 
advancing  the  consideration  takes  deed  absolutely,  368. 
principal  taking  land  in  lieu  of  cash,  broker  entitled  to  commission, 

369,  376. 


636  INDEX. 

[References  are  to  sections.] 
Broker — Continued.  ■' 

V 

when  principal  paying  one,  not  further  liable,  370. 

pool  to  divide  commission  between  brokers  bars  commission,  371. 

to  make  repairs,  has  no  power  to  make- permanent  improvements,  372. 

cannot  retain  commission  from  purchase  money,  373. 

vendor  refusing  to  sell  liable  for  commission,  374. 

vendor  refusing  to  sell,  when  broker  not  entitled  to  commission,  375. 

refused  land  for  commission,  may  take  cash,  377. 

when  not  entitled  to  commission  in  cash,  378. 

release  by  one,  left  other  entitled  to  half  of  remaining  land,  379. 

release  of  vendee  did  not  deprive  broker  of  commission,  380. 

to  collect  rent  not  authorized  to  employ  broker  to  sell,  381. 

acting  in  bad  faith,  required  to  refund  commission,  323,  382. 

receipt  by,  signed  as  agent,  binds  individually,  383. 

giving  receipt  in  name  of  principal,  purchaser  must  look  to  latter,  384, 

642b. 
giving  receipt  in  name  of  principal,  when  may  be  sued  for  money,  642c. 
when  receipt  given  in  name  of  principal  purchaser  may  recall  money,  385. 
to  collect  rent,  cannot  pay  therefrom  debt  of  principal,  386. 
to  collect  rent  must  apply  proceeds  as  directed  by  principal,  387. 
acting  in  interest  of  others,  not  entitled  to  share  in  transaction  for 

principal,  388. 
buying  property,  not  entitled  to  commission  for  its  sale,  389,  389a, 

389b,  389c. 
liable  for  fraud  of  sub-agent,  390. 

deprived  of  commission  by  concealment  of  sub-agent,  391. 
sub-agent  exceeding  authority   defeats   commission,  392.  > 

principal  not  liable  to  sub-agent,  393. 

not  liable  for  poor  sale  by  sub-agent,  394.  / 

sub-agent  entitled  to  one-half  commission,  '396. 
contract  with  sirib-agent  binding,  when,  397. 
one  employing' liable  for  comniission,  398. 
secretly  learning  price,  etc.;  does  not  earn  commission,  399. 
secretly  rep<-esenting  both  parties  bars  commission,  400. 
vendor  acts  in  bad  faith  by  paying  commission  to  purchaser's  broker,  401. 
required  to  exercise  skill  of  calling,  402. 
may  be  responsible  for  sufficiency  of  security,  403. 
must  account  to  principal  for  money  received,  404. 
for  seller,  member  of  purchasing  syndicate,  bars  commission,  405. 
giving  names  of  syndicate,  when  sale  by  owner  bars  commission,  406. 
tenants  in  common  jointly  liable  for  commission,  407. 
selling  lower  than  authorized  bars  commission,  408. 
cannot  vary  terms  of  authority,  409. 

selling  for  all  cash  complies  with  authority  for  half-cash,  410. 
to  sell  for  half-cash  and  time,  cannot  sell  for  all  cash,  410 
understating  price  obtainable  liable  to  princix)al  for  loss,  412a. 


INDEX.  637 

TReferences  are  to  sections.]- 

Broker — Continued.  -■  - 

fraudulent  acts  of  may  give  rise  to  action  of  tort,  414. 
unauthorized  negotiations  not  ratified  by  sale  by  owner,  416. 
accepting  valuation  from  buyer  binds  principal,  416. 
presumption  after  revocation  that  he  acts  for  purchaser,  421. 
entitled  to  commission  on  quantity  contracted  for,  423,  423a 
interfering  in  another's  transaction,  424. 
agreeing  to  look  to  purchaser  for  commission,  425. 
to  purchase  not  entitled  to  commission  from  seller,  425a. 
not  entitled  to  commission  for  sale  at  less  than  fixed  price,  426. 
-    not  entitled  to  commission  as  contract  not  a  lease,  427. 

not   deprived  of   commission  for   immaterial   variance   in   description, 

428,  428a. 
to  procure  loan  entitled  to  commission  on  finding  lender,  430. 
>       negotiating  with  two,  sale  to  one  bars  commission,  432. 
not  entitled  to  commission  when  sale  void  by  statute,  433. 
entitled  to  commission  where  principal   refuses  to  appraise,  434. 
purchaser  who  knew  length  of  lot  barred  commission  of,  435. 
where  vendor  repudiates  tender  not  necessary,  436. 
unsuccessful  with  F.,  owner  selling  to  him  and  others  bars  commission, 

437. 
not  entitled  to  commission  where  party  to  execute  does  not  show  good 

faith,  438. 
unless  exclusive  not  entitled  to  commission  on  sale  by  another,  439. 
entitled  on  sale  by  owner  to  commission  on  share  of  two  tenants  in 

common,  440. 
preventing  competitive  bidding  not  entitled  to  commission,  441. 
in  not  charge  commissions  to  beneficiaries,  442. 
Lerfering  with  negotiations  of  another,  444. 
urst  who  succeeds  is  entitled  to  commission,  445. 
who  was  procuring  cause  of  sale  entitled  to  commission,  446. 
effect  upon  right  to  commission  by  break  in  continuity,  447. 
effect  upon  right  to  commission  by  break  in  sequence,  448. 
not  entitled  to  commission  on  sale  by  principal  uninfluenced  by  broker, 

454. 
'       excess  in  price  as  compensation,  456. 
failure  to  sell,  457,  543. 
failure  to  consummate  contract  of  sale,  458. 
entitled  to  commission  in  stock  of  insurance  company,  468. 
not  entitled  to  full   commission  until  price  paid,  470. 
not  informing  principal  of  customer  defeats  commission,  471. 
knowledge  by  that  principal  owns  part  does  not  defeat  commission,  472. 
litigation  by  third  parties  dees  not  defeat  commission,  473. 
methods  of  earning  commission  by,  474. 
not  required  to  prepare  contract  of  purchase,  474a. 
as  middleman  may  recover  from  each  party,  476. 


^38  INDEX. 

[References  are  to  sections.] 

Broker — Continued. 

not  entitled  to  commission  for  sale  of  mines  not  within  the  descrip- 
tion, 476. 

modification  not  assented  to  by  does  not  defeat  commission,  477. 

modification  in  his  presence  did  not  affect  right  to  commission,  478. 

modification  by  performing  other  services  modifies  right  to  commission, 
479. 

agreeng  to  take  stock  for  commission  can  not  recover  in  money,  480. 

does  not  take  excess  on  net  price  to  owner,  4'~' . 

selling  at  net  price  not  entitled   to  commission,  482. 

entitled  to  commission  on  note  for  excess,  on  default  of  vendor,  483. 

entitled  to  excess  as  commission  from  first  payment,  484. 

when  owner  changed  gross  to  net  price,  liable  for  commission,  485. 

commissions  computed  on  actual  sum  received,  486. 

commissions  not  defeated  because  nominal  is  not  the  real  purchaser, 
487. 

entitled  to  commission  where  failure  not  caused  by  his  fault,  488. 

whether  neither  principal  nor  broker  effecting  sale  knew  of  another's 
negotiations  latter  barred  commission,  489. 

entitled  to  commission  where  principal  sells  before  time  expires,  490. 

reporting  offer  of  $16,000  instead  of  $15,000  did  not  deprive  of  com- 
mission, 491. 

oral  followed  by  written  contract  to  sell  land  entitled  to  commission,  492. 

entitled  to  commission  for  sale  of  four  houses,  not  entitled  to  propor- 
tionate for  one,  493. 

entitled  to  commission  for  sale  of  lots,  not  entitled  to  same  rate  for 
large  body  of  land,  494. 

nromised  commission  for  selling  part,  entitled  to  same  rate  for  all, 
495. 

who  failed  to  sell  all  entitled  to  commission  on  sale  by  owner  of  part 
to  customer,  496. 

share  of  profits  on  sale  through  sub-agent,  497. 

commission  payable  on  sale  and  not  on  collection  of  deferred  pay- 
ments, 498. 

commission  due  when  contract  made  with  produced  purchaser,  499. 

entitled  to  commission  on  actual  payments  by  defaulting  vendee,  500, 
506. 

limited  to  commission  on  $1,000,  though  property  later  sold  for 
$12,500,  oOOa. 

right  to  commission  not  defeated  because  to  be  paid  from  purchase 
money,  501. 

principal  Kable  for  commission  on  sale  at  lower  price,  unless  fixed 
required,  502. 

where  principal  agreed  to  pay  on  receipt  of  price,  not  entitled  be- 
fore, 503. 

commission  usually  payable  on  completion  of  transaction,  604. 


INDEX.  639 

[References  are  to  sections.] 

Broker — Continued, 

entitled    to    commission    though    purchaser    pays    more    than   he    au- 
thorized, 505. 

cases  in  which  held  not  procuring  cause  of  sale,  507. 

entitled  to  commission  where  sale  frustrated  through  failure  to  par- 
tition, 508. 

partial  performance  entitled  neither  to  commission  nor  on  a  quantum 
meruit,  509. 

in  charge  of  real  estate  securing  tenant  entitled  to  recover  on  quan- 
tum meruit,  510. 

on  principal  selling  for  less  than  agreed  price,  entitled  to  recover  on  a 
quantum  meruit,  511,  512. 

in  absence  of  express  contract  broker  procuring  purchaser  may  recover 
on  a  quantum  meruit,  513. 

in   absence   of    fixed    rate    measure    of    commission    value    of    service 
rendered,  513a. 

demand  of  $10,000  to  release  lien  defeated  claim  for  commission,  514. 

first  entitled  to  commission  by  second's  relinquishment,  515. 
'  if   authority  to   secure   purchaser   revocable,   finding   after   bars   com- 
mission, 516. 

if  customer  reserves  right  to  withdraw   if   title  bad,   when   exercised 
bars  commission,  517,  534. 

unless  exclusive  rival  not  entitled  to  commission  on  sale  by  another,  518. 

and  sub-agent  similar  in  relations  to  principal  and  agent,  519. 

sub-agent  entitled  to  share  of  commission  though  he  violated  instruc- 
tions, 520. 

liable  to  sub-agent  though   property   on   sale  found  not  to  belong  to 
vendor,  520a. 

sub-agent   entitled   to   commission   for   sale   made   after   revocation   of 
authority,  521. 

sub-agent  not  entitled  to  commission  for  sale  at  reduced  price,  524. 

sub-agent  entitled   to   commission   though   he   failed   to   give  name   of 
purchaser,  525. 

selling  to  railroad  instead  of  to  syndicate,  entitled  to  commission,  526. 

entitled  to  commission  though  sale  other  than  contemplated,  527. 

right  to  commission  not  afi"ected  by  owner's  suppositions,  528. 

erronecjus  advice  as  to  liability  defeated  right  to  commission,  529. 

failing  to  name  purchaser  in  telegram  does  not  defeat  commission,  530. 

where  vendor   sought  to  vary  terms   and   purchaser   refused   to  take, 
broker  entitled  to  commission,  531. 

entitled    to    commission    on    bringing    parties    together,    though    Ihcy 
contract  on  different  terms,  532. 

on  making  sale,  defect  in  title  does  not  deprive  of  commission,  533. 

to  have  part  of  profit,  on  sale  failing  by  defect  in  title  not  entitled  to 
commission,  535. 

payment  of  commission  to,  may  depend  on  transfer  of  title,  636. 


640  INDEX. 

tReferences  are  to  sections.] 

Broker — Continued.  ■    ~ 

■        not  entitled  to  commission  where  sale  defeated  by  supposed  defect  in 
title,  537. 

entitled    to    commission    on    producing    buyer,    whether    principal    or 
another  holds  title,  538. 

sale  defeated  by  want  of  title,  which  he  knew,  not  entitled  to  com- 
mission, 539. 

ignorance  of  contract  by  holder  of  record  title  did  not  defeat  right 
to  commission,  540. 

where  sale  failed  by  dispute  over  taxes  barred  commission,  541. 

entitled  to  commission  where  sale  failed  after  memorandum  contract 
signed,  542. 

not  entitled  to  commission  for  unavailing  efforts  to  make  a  sale,  543. 

to  entitle  to  commission  for  sale  negotiations  must  be  uninterrupted, 
544. 

undisclosed  agreement  to  divide  commission  with  purchaser  does  not 
bar  commission,  545. 

not  entitled   to  commission  until  he  has   performed  his   undertaking, 
546. 

not  entitled  to   commission   for   procuring  contract   subject   to   unau- 
thorized condition,  547. 

procuring  purchaser   for  vested   remainder  on   different  terms  barred 
commission,  548. 

does  not  earn  commission  if  contract  void  if  first  payment  fails,  549. 

variance  in  name  of  ranch  sold  did  not  bar  commission,  550. 

not  entitled  to  commission  for  contract  too  vague  to  enforce,  551. 

withdrawal  of  land  from  sale  entitled  by  contract  to  commission,  552. 

withdrawal  and  sale  by  owner  to  customer  in  good  faith  bars  commis- 
sion, 553. 

principal  paying  commission  to  broker  before  purchaser  withdrawing 
can  not   recover   amount,   554. 

entitled  to  commission  where  sale  failed  because  rights  of  two  heirs 
not  acquired,  555. 

circumstances  under  which  he  earns  commission,  557. 

circumstances  under  which  he  does  not  earn  commission,  558. 

who  acquiesced  in  reduction  of  price,  commission  computed  on  price 
received,  560. 

may  be  the  common  agent  of  both  parties,  578. 

acting  as  a  mere  middleman,  578. 

when  principal  employing  several  may  remain  neutral  as  to  claims  of,  581. 

parol  contract  binds  unnamed  principal,  583. 

to  share  in  profits  of  sales  not  a  partner,  584. 

has  right  of  action  against  defaulting  purchaser  for  lost  commission, 
588. 

has  right  of  action  against  vendee  for  price  paid  for  property,  588a. 

to  measure  land  does  not  sustain  claim  for  selling,  594. 


INDEX.  641 

[References  are  to  sections.] 

Broker — Continued. 

taking  title  to  land,  principal  may  tender  amount  and  demand  deed, 

595. 
when  not  necessary  to  show  vendor  had  a  clear  title,  596. 
without  authority  to  require  owner  to  furnish  abstract  of  title,  5t)7. 
presiuned  to  have  contracted  with  reference  to  usage,  599. 
where  authority  must  be  in  writing,  contract  without  unenforceable,  602. 
can  not  recover  commission  when  contract  unenforceable,  603. 
contract  by  unlicensed  unenforceable,  604. 
employment  continues  for  a  reasonable  time,  612,  613. 
principal  admitting  sales,  entitled  to  reasonable  commission,  615a. 
to  recover  commission  on  principal  refusing  purchaser  tender  not  nec- 
essary, 625. 
reasonable   time    immaterial    when    purchaser    found   while    employed, 

614. 
in  absence  of  express  agreement  reasonable  value  of  services  may  be 

recovered,  615. 
not  necessary  to  put  principal  in  default  before  suing  for  fees,  617. 
ratification  by  acceptance  of ■  offer  made  to,  619. 
ratification  cures  defect  in  agent's  appointment,  620. 
ratification  of  appointment  by  principal  executing  contract  with  pur- 
chaser, 621. 
ratification  of  appointment  by  acceptance  of  proceeds,  622. 
where   evidence   shows  sale  for  less   than   claimed   defendant  can  not 

object,  627. 
must  account  to  principal  for  excess  withheld,  630. 
not  liable  to  principal  for  money  refunded  to   purchaser  on  rejected 

sale,  642a. 
contract  of,  construed  as  promise  to  pay  price  if  not  sold,  1089. 
Brokerage,  equivalent  to  compensation  for  services,  8a. 
Building  material,  builder's  contract,  builder's  loan,  282.  , 

Burden  of  proof,  examples  of,  51,  57,  314,  321,  464,  705-728c. 
Business,  broker  can  not  require  his  principal  to  go  to  place  of,  40,  41. 


California,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 

contract  for  the  sale  of  lands  must  be  in  writing,  79b. 
Canal,  erroneous  description  of  land  adjoining,  59. 
Cancellation  of  contract,  292,  314,  462,  454,  986a. 
Cancellation  of  deed  of  trust,  57. 

Care,  instruction  that  broker  should  exercise  greatest,  962. 
Cash,  18.  41,   121,  144,  292,  314,  328g,  422,  422a,  464,  570,  626. 
Cashier,  328p. 
Caveat  emptor,  52. 
Changes  made  in  contracts,  55. 


^42  INDE2. 

[References  are  to  sections.] 

Church  property,  446. 

Circumstances  to  show  broker  agent  of  lender,  256. 

Clandestinely  representing  opposite  party,  290. 

Clerks,"  301. 

Cl<Jud  on  title  justified  purchaser  not  to  complete  sale,  514, 

Cloud  on  title  by  default  of  purchaser,  550. 

Co-agent,  when  not  bound  by  option,  24,  35,  98. 

Collusion,  296. 

Colorado,  Contract  for  sale  of  lands  must  be  in  writing,  79b. 

Commissions  and  compensation  of  agents  and  brokers,  Pt.  4,  Sec.  423-558. 

Commissions,  when  earned. 

under  exclusive  right,  when  sale  by  owner,  only  when  so  provided,  13. 

when  purchaser  procured  before  revocation,  15. 

upon  ratification  of  unauthorized  acts,  24. 

on  sale  of  contract  for  sale  of  real  estate,  28,  145. 

on  sale  of  lots  by  partnership,  37.  _ 

on  acting  openly  and  buying  vendor's  property,  40. 

although  he  gives  part  to  customer,  41. 

on  furnishing  purchaser  as  requested  by  letter,  42. 

on  furnishing  purchaser,  although  contract  ambiguous,  49. 

on  selling  land  for  bank,  50. 

on  sale  by  broker  before  change  made  by  seller,  55. 

on  sale  of  interest  of  tenant  in  common,  64. 

on  sale  on  indirect  information  from  broker,  69a. 

on  securing  option,  83. 

finding  acceptable  purchaser,  84. 

on  customer  exercising  option,  86,  96. 

on  making  sale,  although  principal  held  only  option,  87. 

on  effecting  sale  of  land,  113. 

when  amount  of  sale  increased  entitled  to  more,  115. 

although  sale  enjoined,   118,  469. 

under  contract  entitled  on  withdrawal  of  land  from  sale,   120. 

allowed  recovery  on  effortless  sale,  132. 

on  effecting  an  exchange  of  lands,  150,  152. 

on  eflFecting  an  exchange  although  other  property  substituted,   151. 

when  exchange  wrongfully  broken   off  by   principal,    170. 

on  effecting  exchange  of  lands,  though  terms  changed  by  parties,  175. 

for  effecting  exchange  under  severable  contract,  176. 

for  exchange  when  purchaser  could  give  title  to  property  offered  in 
exchange,   180. 

for  exchange  for   amount   to   boot,  entitled   to   commission   on  whole 
value,  185. 

on  effectitig  binding  contract  of  exchange.  186. 

on  producing  customer  willing  to  exchange,  188. 

when  both  parties  agree  on  terms  of  exchange  of  lands,  191. 

although  one  party  to  exchange  failed  to  perform,  192. 


INDEX.  643 

r References  are  to  sections.] 

Commissions,  when  earned — Continued. 

for  lease,  with  privilege  of  purchase,  200. 

for  securing  a  lessee,  204. 

for  bringing  about  a  sale  or  lease,  215,  491. 

for  procuring  a  loan,  22(Ja. 

for  procuring  a  loan  for  a  less  amount  which  is  accepted,  233,  429. 

on  finding  a  lender,  234,  430. 

where  lender  refused  after  principal  cured  defect  in  title  to  make  the 

loan,  240. 
charging  more,  entitled  to  statutory  fee,  241. 
for  procuring  loan^  though  principal  refused  to  take,  242. 
on  securing  buj'er  for  bonds,  277. 

on  openly  and  in  good  faith  purchasing  principal's  property,  290. 
for   finding   purchaser   though   principal   previously   but   in   bad  faith 

sold  to  another,  302. 
on  procuring  purchaser  on  owner's  terms,  313. 
although  purchaser  postpones  purchase,  305. 
although  principal  takes  land  in  lieu  of  cash,  369,  376. 
although  vendor  refuses  to   sell,  374. 
refused  land  for  commission  may  take  cash,  377. 
release  by  one  left  other  entitled  to  half  of  remaining  land,  379. 
although  owner  refused  to  convey,  374a. 
release  of  vendee  by  vendor  did  not  affect,  380. 
sub-agent  entitled  to  one-half  commissions,  396. 
entitled  to  commission  on  quantity  contracted  ior,  423,  423a. 
computed  on  actual  price  received,  560. 

notwithstanding  immaterial  variance  in  description,  428,  42Sa. 
where  principal  refuses  to  appraise,  434. 
on  sale  by  owner  on  share  of  two  tenants  in  common,  440. 
first  broker  who  succeeds  entitled  to,  445. 
broker  who  was  procuring  cause  of  sale  entitled  to,  446. 
entitled  to  in  stock  of  insurance  company,  4C8. 

on  forfeited  payments  made  by  defaulting  purchaser,  462,  500,  S06. 
not  entitled  to  full  commission  until  price  paid,  470. 
as  middleman  may  recover  from  each  principal,  475. 
modification  in  broker's  presence  did  not  afi"ect  right  to,  478.  • 
in  some  jurisdictions  on  sale  at  net  price,  482. 
on  sale  at  net  price  and  note  for  excess  to  broker,  and  default  by 

vendor,  483. 
although  vendor  changed  gross  to  net  price,  485. 
where  failure  of  sale  not  caused  by  his  fault,  488. 
where  principal  sold  before  time  expired,  490. 
where  oral  was  followed  by  written  contract  to  sell  land,  492. 
on  sale  of  part  by  owner  to  customer,  496. 
when  contract  of  exchange  executed,  499a. 
when  actual  transfer  made,  409b. 


644  INDEX. 

[References  are  to  sections.] 

Commissions,  when  earned — Continued.  t-"ti!i(  w 

where  sale  frustrated  through  failure  to  partition,  508. 
first  entitled  by  second's  relinquishment,  515. 
sub-agent  entitled  to  share  commissions,  523. 
sub-agent  entitled  to  commission  though   he  failed  to  give  the  name 

of  the  purchaser,  525. 
sale  to  railroad  instead  of  to  syndicate  did  not  deprive  of,  526. 
although  sale  other  than  contemplated,  527. 
not  affected  by  owner's  suppositions,  528. 

when  vendor  sought  to  vary  terms  and  purchaser  refused  to  take,  531. 
on  bringing  parties  together  though  they  contract  on  different  terms,  532. 
not  affected  by  defect  in  owner's  title,  533. 

on  producing  buyer,  whether  principal  or  another  holds  the  title,  538. 
although  holder  of  record  title  ignorant  of  contract,  540. 
where  sale  failed  after  memorandum  contract  signed,  542. 
not    affected    by   undisclosed    agreement   to    divide    commissions    with 

purchaser,  545. 
not  affected  by  variance  in  name  of  ranch  sold,  550. 
on  withdrawing  land  from  sale,  552. 

where  sale  failed  because  rights  of  two  heirs  were  not  acquired,  655. 
circumstances  generally  entitling  to,  557. 
for  purchaser  brought   through   advertisement,   561. 
although  agreed  to  divide  with  third  persons,  695a. 
on  sale  by  owner  without  notice  of  revocation,  1110.  '*   '"''^l''-'*i'-' 
CJommissions,  when  not  earned. 

under   exclusive   right  on  sale  by  another,   when  not  so  provided  in 

contract,  13. 
obtaining  price  of  land  from  owner  insufficient,   17,  70. 
acting  under  authority  from  one  executor  only,  34. 
concealing  name  of  real  and  putting  forward  fictitious  purchaser,  41. 
where  owner  forced  to  join  joint  owner  in  sale,  42,  125. 
for  contingent  sale  which  failed,  54. 
where  counter-proposition  not   an  acceptance,  56, 
when  vendor  refused  to  give  warranty  deed,  57.    , 
indirect  acts  of  broker  ineffectual,  69. 
securing  a  mere  option  instead  of  a  sale,  85. 
for  sale  under  an  option,  92. 

to  procure  loan,  not  entitled  for  option,  93.  ' 

for  options  withdrawn  before  contract,  95. 
for  unexercised  option,  101. 
for  securing  only  part  of  options,  103. 
for  a  nominal  sale,   116. 

when  failure  caused  by  no  fault  of  principal,  122. 
for  sale  by  wrong  description,   123,   181. 
selling  below  authorized  price,    134. 
second  selling  to  client  of  first,  latter  not  entitled,  141. 


INDEX,  645 

[References  are  to  sections.] 

Ootimissions,  when  not  earned — Continued. 
sale  by  owner  before  that  by  broker,   142. 
acquiescence  by  broker  in  disagreement,   143. 
effecting  exchange  with  irresponsible  customer,  167. 
effecting  an  exchange  without  employment,  162. 
broker  did  nothing,  owner  making  exchange,  169. 
exchange   defeated  by  existence  of  lease,   177. 
exchange  defeated  by  failure  to  furnish  abstract  of  title,  179. 
effecting  exchange  by  interfering,   178. 
on  failure  of  conditional  agreement,   182. 
where  misrepresentation  defeated  exchange,  183. 
failure  of  exchange  by  reason  of  encroachments,  187. 
failure  to  secure  transfers  in  exchange,  193. 
where  party  to  exchange  shows  bad  faith,   195. 
broker  to  sell  securing  one  willing  to  lease,  198. 
for  securing  lease,  when  employed  to  collect  rents,  207. 
broker  for  tenant  has  no  claim  on  lessor,  208. 
to  secure  lessee  not  entitled  for  option,  209. 
securing  lease  for  five  years,  sale  at  second,  loses  remaining  commis- 

sion,  212. 
after  revocation  on  lease  to  customer  by  owner,  214. 
where  sale  of  lease  defeated  by  lessor's  refusing  to  assign,  216. 
for  preventing  lease  to  highest  bidder,  217. 

when  payable  from  proceeds,  and  loan  refused  for  bad  title,  223, 
where  lender  refused  to  consummate  loan,  224. 
for  securing  conditional  loan,  225. 

loan  by  seller  to  buyer,  latter  not  liable  to  former's  broker,  232. 
for  failure  to  report  loan,  235,  431. 
where  owner  himself  procures  loan,  245. 

broker  failing  to  secure  loan,  and  owner  securing  from  same  party,  247. 
broker  to  examine  title  and  secure  loan,  on  failure  by  defect  in  title,  248, 
losing  loan  through  wrong  dimensions,  249. 
conditional  sale  of  mortgage  not  consummated,  272. 
on  bonds  being  declared  illegal,  276. 
on  buyer  withdrawing  from  sale  of  bonde,  278. 
for  concealing  important  information  from  principal,  291. 
making  contract  in  excess  of  authority,  307e. 
sale  by  owner  after  abandonment  by  broker,  292. 
for  sham  sale  through  collusion,  296. 
where  broker  really  represented  opposing  party,  296. 
where  sale  deceitfully  made,  298. 

where  broker  acts  fraudulently  with  his  principal,  314. 
when  broker  is  guilty  of  negligence,  346. 
when  brokers  make  pool  to  divide  commission,  371. 
on  vendor  refusing  to  sell,  in  absence  of  custom  to  contrary,  375. 
buying  property  not  entitled  on  its  sale,  389,  389a,  389b,  389c. 


646  INDEX. 

[References  are  to  sections.] 

Commissions,  when  not  earned — Continued. 

by  wrongful  concealment  by  sub-agent,  391. 

by  sub-agent  exceeding  his  authority,  392. 

secretly  learning  price  and  sending  buyer,  399. 

secretly  representing  both  parties,  400. 

broker  member  of  purchasing  syndicate,  405. 

sale  by  owner  before  syndicate  formed,  406. 

selling  at  lower  price  than  authorized,  408. 

failing  to  disclose  best  terms  to  principal,  412. 

for  interfering  in  another  transaction,  424. 

for  a  sale  at  less  than  fixed  price,  426. 

contract  secured  not  a  lease,  427. 

broker  negotiating  with  two,  sale  by  owner  to  one,  432. 

for  sale  void  by  statute,  433. 

for  shortage  in  length,  when  purchaser  who  defaulted  knew  tlie  fact,  435. 

broker  unsuccessful  with   F.,  owner  selling  to  him  and  another,  437. 

where  party  to  execute  sale  shows  bad  faith,  438. 

unless  exclusive  on  sale  by  another  broker,  439. 

broker  preventing  competitive  bidding,  441. 

can  not  charge  to  beneficiaries,  442. 

by  break  in  continuity  of  broker's  negotiations,  447. 

by  break  in  sequence,  448. 

sale  by  principal,  uninfluenced  by  broker,  454. 

failure  to  consummate  contract  of  sale,  458. 

by  default  of  purchaser,  462,  556. 

not  informing  principal  of  customer,  471. 

on  making  a  sale  at  net  price,  482. 

where   neither    principal    nor   other   broker    knew    of    negotiations   of 

broker,  489. 
employed  to  sell  four  houses,  not  entitled  to  same  proportion  for  one,  493. 
where  not  the  procuring  cause  of  sale,  507. 
where   customer   exercises   reserved   right   to   withdraw   for   bad   title, 

517,  534. 
where  broker  to  have  part  of  profit,  on  sale  failing  by  defect  in  title,  535. 
where  sale  defeated  by  supposed  defect  in  title,  537. 
sale  defeated  by  want  of  title,  which  broker  knew,  539. 
where  sale  failed  by  dispute  over  taxes,  541. 
by  unavailing  efforts  to  effect  a  sale,  543. 

procuring  buyer  for  vested  remainder  on  different  terms,  548. 
if  sale  to  be  void  if  first  payment  fails,  549. 
for  contract  too  vague  for  enforcement,  551. 
by  withdrawal  and  sale  in  good  faith  by  owner,  553. 
circumstances  under  which  not  earned,  558. 
by  waiver  of  right,  560. 
where  contract  of  sale  unenforceable,  603. 
when  law  of  place  of  performance  governs  as  to,  1129. 


INDEX.  647' 

[References  are  to  sections.] 

Commissions  or  compensation.  ■    •>  ' 

broker  entitled  to  reasonable,  615,  616. 

in  estimating  on  exchanges,  actual  and  not  trade  values  govern,  149. 

paid  broker  may  be  recovered  from  party  in  default,  163,  382,  554. 

methods  of  earning,  474. 

whether  additional  promised  a  question  for  jury,  918. 
Common  counts,  314,  631,  704a. 

Competing  purchasers,  broker  not  necessarily  guilty  in  representing,  320. 
Competition,  preventing,  441. 
Complaint.     See  Petition  ob  Complaint. 

Completion  of  transaction,  commission  usually  payable  upon,  504. 
Computation  of  commissions  made  on  actual  sum  received,  486,  560. 

as  agreed  upon,  423a. 
Computing  commission,  mortgage  treated  as  part  of  purchase  price,  275. 
Compromise,  765. 
Conditional  agreements,  40,  44,  182,  225,  458,  517,  558. 

sale  of  mortgage,  272. 
Conditions  precedent,  45,  470,  557,  570,  587. 

Concealment,  41,  222,  291,  299,  314,  315,  318,  320,  382,  391,  487,  658,  583. 
Concealed  principal.    See  Undisclosed  Principal. 
Conduct  of  broker,  302. 
Conformity,  568. 

Constructions.     See  Judicial  Constructions  and  Interpretations. 
Consent,  17,  51,  290,  1036,  314,  567. 
Consolidation  of  interests  not  a  sale,  66. 
Continuity  broken,  and  its  effects,  447. 
Contractual  relations.     As  to  insufficiency  of  acts  to  establish,  69. 

information  not  establishing,  70. 
Connivance,  182. 
Consummation  of  sale,  lease  loan,  exchange,  mortgage,  119,  156,  189,  218, 

224,  233,  272,  375,  433,  449,  458,  482,  570. 
Contingency,  54,  780. 
Contract  of  sale,  to  set  aside,  130,  151,  295,  321, 

deed  treated  as  a,  57. 

entire  or  severable,  67. 

if  fails  by  defect  in  title  may  deprive  broker  of  commission,  12. 

coupled  with  an  interest,  16. 

in  excess  of  authority  does  not  bind  principal,  18. 

special  for  sale  of  real  estate,  17. 

unilateral,  20,  397. 
Contract,  must  be  based  upon  a  consideration,   19,  21. 

repudiation  or  rescission  of,  23. 

ratification  of,  24. 

personal,  promise  by  administrator  to  broker,  34. 


648  INDEX. 

[References  are  to  sections.] 

Ck)ntract,  conditional,  44,  65. 

agent  varying  terms  of  not  entitled  to  commission,  41. 

condition  precedent  to  taking  effect,  46. 

effect  of  death  of  principal  or  agent,  46. 

ambiguous,  construction  given  to,  49. 

changes  in,  55. 

not  that  of  the  owner,  55. 

failure  of  vendor  to  re-execute,  73. 

to  divide  commissions  must  be  in  writing,  79. 

agent  may  be  authorized  by  parol  to  make  lease  or  sale  of  real  prop- 
erty, 79a. 

for  sale  of  lands  in  certain  States  must  be  in  writing,  79b. 

with  another,  telegram  should  reach  principal  before,  81. 

to  take  beyond  net  price  for  commission  an  agency  and  not  an  option, 
82. 

exercise  of  option  revokes  agency,  89. 

to  sell,  etc.,  a  mere  option,  90. 

sale  by  owner,  subject  to  option,  not  a  breach  of,  91. 

principal  liable  to  action  for  breach  of,  36,  42,  102,  563,  299,  672. 

what  is  not  a  breach  of,  37. 

of  exchange  of  lands,  subject  to  encroachments,  a  mere  option,  97. 

when  petition  shows  no  breach  of,  636. 

can  not  recover  on  proof  of  substituted,  638. 

of  sale  may  be  established  by  circumstantial  evidence,  114. 

prima  facie  evidence  of  readiness  to  buy,  117. 

exchange  prima  facie  evidence  of  title,  190. 

to  pay  broker  for  effortless  sale  upheld,  132. 

may  require  a  sale  to  entitle  broker  to  commission,  133. 

without  special,  what  required  of  broker  to  find  a  purchaser,  136. 

ended  by  a  sale  by  one  of  rival  brokers,  137. 

of  sale,  broker  selling  and  vendee  refusing  to  assign,  145. 

agreement  to  plat  and  sell,  etc.,  147. 

of  exchange,  broker  entitled  to  commission  on  execution  of,  160. 

to  purchase  land  for  exchange,  sufficiency  of,  154. 

to  convey  not  sufficient  to  show  title,  159. 

to  procure  a  purchaser,  160. 

of  exchange,  failure  of  condition,   182. 

held  to  be  severable,  176. 

broker  selling  under  power  in  mortgage  without  notifying  mortgagor 
commits  no  breach  of,  259. 

abandonment  of  by  purchaser,  292. 

abandonment  by  broker,  292. 

in  excess  of  authority  vested  in  broker,  307. 

varying  from  instructions  will  not  be  enforced,  307a. 

in  excess  of  authority  binds  the  broker,  307b. 

illegal,  327. 


INDEX.  649 

[References  are  to  sections.] 

Contract,  of  sale  under  a  general  power,  broker  must  bind  principal  by,  3281. 
of  brokerage  not  set  aside  for  fraud,  348. 
broker  to  make  written,  can  not  make  oral,  363. 
to  divide  fees  with  sub-agent  becomes  binding  when,  397. 
when  modified,  rights  depend  upon  new,  411. 

for  the  sale  of  real  estate  may  be  established  by  oral  evidence,  419. 
secured  not  a  lease,  and  broker  not  entitled  to  commission,  427. 
consummation  of,  449,  458. 

of  sale,  when  invalidity  unavailable  to  defeat  commission,  454. 
by  performance,  455,  567. 
severable,  455. 

failure  of  purchaser  to  carry  out,  460. 
cancellation  of,  462. 
in  excess  of  authority,  458. 
defect  in  title  defeating  commission,  459. 
broker  not  required  to  prepare,  474a. 
oral,  followed  by  written,  to  sell  land  entitles  broker  to  commission, 

492. 
commissions   are   due   when   contract   made   with   purchaser   produced 

by  broker,  499. 
partial  performance  entitles  broker  to  recover  neither  on  contract  nor 

on  a  quantum  meruit,  509. 
in  absence  of  express  broker  producing  purchaser  may  recover  on  a 

quantum  meruit,  513. 
broker  entitled  to  commission  on  bringing  parties  together  though  they 

contract  on  different  terms,  532. 
after    memorandum    contract    signed,    broker    entitled    to    commission 

where  principal  refused  to  pay  water  tax,  542. 
in  some  States   recovery  may  be  had  for   partial   performance  of   an 

entire,  546a. 
subject  to  unauthorized  condition,  broker  not  entitled  to  commission 

for  procuring,  547. 
to  be  void  if  first  payment  fails,  broker  does  not  earn  commission,  549. 
withdrawal  of  land  from  sale  entitles  broker  to  commission,  552. 
withdrawal  and  sale  by  owner  to  customer,  in  good  faith,  bars  com-. 

mission,  553. 
parol,  binds  unnamed  principal,  583. 
to  pay  commission  on  withdrawing  land  from  sale  strictly  construed, 

685. 
verbal  for  sale  of  land,  no  rights  in  equity  under,  589. 
of  sale  requiring  abstract  of  title  not  within  authority,  597. 
usage  proved,  law  presumes  contract  made  with  reference  thereto,  699. 
where  required  to  be  in  writing,  without  unenforceable,  602. 
where  unenforceable  broker  can  not  recover  commission,  603. 
by  unlicensed  broker  not  absolutely  void,  604. 
hiring  auctioneer  need  not  be  in  writing,  605. 


650  INDEX. 

[References  are   to  sections.] 

Contract,   to   pay  plaintiff  if   defendant  bought  railroad  good  only  for  a 
reasonable  time,  GI3. 

where  unauthorized,  knowledge  of  by  principal  a  prerequisite  to  rati- 
fication, G24. 

ratification  of,  not  shown  by  acquiescence  in  without  knowledge,  618. 

ratification  shown  by  acceptance  of  offer,  619. 

cf  emplojment,  plaintiff  must  allege,  632a. 

what  broker  must  show  to  recover  on  implied,  712a. 

to  avoid  issue  must  be  presented  by  pleadings,  871a. 

between   owner   and   purchaser   not   evidence   that  broker   found   pur- 
chaser,  833a. 

invalid,  instruction  so  stating  misleading,  1002. 

of  sale,  instrument  construed  to  be,  1087. 

when  not  invalid,  1092. 

not  in  violation  of  United  States  land  laws,   1100. 

limited  to  one-half  net  profits,  1103. 

construed  that  broker  was  to  receive  one-half  net  profits,  1104. 

construed  not  to  be  harsh  or  unreasonable,   1106. 

construed  to  be  one  of  agency,  1107. 

construed  to  be  enforceable  against  principal,  1108. 

of  agent  to  sell  land,  not  objectionable  though  not  signed  by  both 
parties,   1109. 

for  benefit  of  third  person  may  be,  by  him,  enforced,  1111. 

of  sale,  distinction  drawn  between  consummated  and  unconsummated, 
1113. 

between  brokers  for  division  of  commission  construed,  1114, 

for  commissions,  construction  of,  1115. 

held  to  be  severable  and  not  entire,  1116. 

construction  defining  employment  of  word  "list,"  1117. 

construction  of,  to  pay  commission  to  broker,  1118. 

construeticn  of  particular,   1119,   1120,   1121,   1122,    1124,   1127^  1128, 
1129. 

when  place  of  performance  of  governs,  1128,  1129. 

when  interpretation  of  for  the  court,  when  a  question  of  fact  for  jury, 
1131. 
Conspiracy  of  broker  and  purcha.ser  to  defraud  vendor,  862n. 

purchaser  and  owner  tc  deprive  broker  of  commissions,  862b. 
Counter-proposition,  56. 
Co-operation,  219. 

Correspondence,  18,  24,  42,  79,  237,  564,  648,  738,  757,  803a,  829m,  1079. 
Corporations,  24,  38,  328n,  468,  574,  1075c. 
Covenants,  43,  239,  364,  417. 
Conveyances,  setting  aside  of,  18,  57,  572. 
Conversations  as  evidence,  735,  736,  809a,  827. 
Costs,  669,  700a. 


ESTDEX.  651 

[References  are  to  sections.] 

Courts,  17,  314,  571,  1066,  1131. 

findings  by,  1048- 1053b. 
Credit,  53. 
Creditor  collecting  rent  can  not  pay  therefrom  his  own  debt,  386. 

failing  to  impeach  conveyance,   151. 
Crops,  486,  500a. 
Consideration,  contract  must  be  based  upon  a,  19. 

agreement  to  wait  for  commission  unsupported  by  a,  174. 

failure  of,  46,  1048. 

moral  obligation  as,  690. 

essential  constituent  of  an  enforceable  contract,  21. 

what  constitutes  valuable,  a  question  of  law,   1007. 

when  the  return  of  must  be  pleaded,  630. 

contract  that  did  not  rest  on  an  immoral,  559. 
Cross-examination,  817,  817a,  817b. 
Cross-petition,  630. 

Custodian  of  contract,  in  absence  of  other  arrangement  broker  is.  557. 
Custom  of  usage,  462,  598,  599,  626,  626a,  746,  764,  1021,  1026. 


Damages,  actions  for,  15,  26,  299,  313,  462. 

error  to  charge  jury  not  bound  by  any  rule  in  fixing,  1013. 

measure  of,  300,  358,  396,  462. 

speculative,  300. 

certain  expenses  not  elements  of,  561. 

See  also  Petition. 

Deals,  455,  771,  820,  967. 
Death,  its  effect  upon  contracts,  15,  34,  46,  456. 

single  letter  insufficient  to  establish  agency  after,  46. 
Debt  of  another,  303. 

Debtor  before  payment  should  see  agent  has  security,  357. 
Decedent,  34. 

Deceit,  41,  ^98,  321,  607,  1053.  1073. 

Deeds,  15,  18,  24,  33,  39,  43,  57,  90,  144,  159,  161,  163,  290,  291,  292,  311, 
314,  335,  304,  368,  404,  572,  626,  758,  925. 

their  execution  by  agents,  58. 
Defeat  of  broker's  right  to  commissions,  what  offects. 

merely  obtaining  price  from  owner,  and  not  employed,  17. 

purchaser  making  parol  contract  and  repudiating  before  it  is  reduced^ 

to  writing,  41. 

by  misrepresentations  of  broker,  42,  183. 

by  broker's  mistake  in  describing  land,  181. 

by  failure  of  conditional  agreement,  182. 

by  failure  to  secure  transfers  from  parties  to  exchange,  193. 

sale  frustrated  by  lessor's  refusal  to  assign,  216. 


652  INDEX.' 

[References  are  to  sections.] 

Defeat  of  broker's  right  to  commissions,  what  effects — Continued. 

where  lender  refused  to  consummate  loan,  224. 

conditional  loan,  defeated  by  defect  in  title,  225. 

by  failure  of  purchaser  to  execute  mortgage,  274. 

by  breach  of  broker's  duty  to  principal,  290. 

by  negligence  of  broker,  346. 

by  sub-agent  concealing  fact  from  principal,  391. 

by  sub-agent  exceeding  authority,  392. 

by  secretly  representing  both  parties,  400. 

broker  a  member  of  purchasing  syndicate,  405. 

broker  making  sale  on  lower  terms  than  authorized,  408. 

broker  failing  to  disclose  to  principal  the  best  terms  obtainable,  412, 
412a. 

where  purchaser  who  knew  exact  length  of  lot  refused  on  that  account 
to  take,  435. 

instances  of  defeat  of  broker's  right  to  commission,  454. 

by  failure  to  consummate  contract  of  sale,  458. 

in  certain  cases  by  failure  of  sale  by  defect  in  title,  469. 

«>n  account  of  irresponsibility  of  purchaser,  464. 

failure  to  inform  principal  of  customer,  471. 

for  sale  not  within  the  description,  476. 

when  commission  payable  from  purchase  money,  where  sale  not  made, 
501. 

by  broker's  erroneous  advice  as  to   liability  for  sewer  tax,  529. 

by  demand  of  $10,000  to  release  contract  lien,  514. 

sub-agent  could  not  recover  unlawful  commissions,  522. 
Defeat  of  broker's  right  to  commissions,  what  does  not  effect. 

sale  by  owner  to  one  with  whom  broker  had  begun  negotiations,  15. 

refusal  of  wife  to  join  in  deed  of  conveyance,  39. 

although  principal  held  only  an  option  at  time  of  sale,  87. 

that  customer  does  not  own  land,  when  he  has  a  contract  for  its  pur- 
chase, 154. 

by  lessor's  arbitrarily  refusing  to  accept  lease,  197. 

by  principal  refusing  to  take  loan,  242. 

by  principal  selling  to  another  after  broker  has  a  customer,  302. 

by  immaterial  variance  in  the  description,  428,  428a. 

instances  which  did  not  defeat  broker's  right  to  commissions,  454. 

selling  a  portion  instead  of  whole  tract,  458. 

payment  of  forfeiture  held  equivalent  to  performance,  462. 

on  making  contract,  which  is  accepted,  although  purchaser  turns  out 

to  be  irresponsible,  464. 

litigation  instituted  by  third  persons.  473. 

by  modification  not  assented  to  by  broker,  477. 

by  modification  fty  owner  in  broker's  presence,  478. 

broker  failing  to  disclose  that  nominal  is  not  the  real  purchaser,  487- 

reporting  offer  of  $16,000  instead  of  $15.Q00,  491. 


INDEX.  653 

[References  are  to  sections.] 

Defeat  of  broker's  right  to  commissions,  what  does  not  eflFect — Continued. 

because  to  be  paid  from  purchase  money,  and  sale  failed,  501. 

failing  to  name  purchaser  in  telegram  to  owner,  530. 

if  purchaser  willing  to   perform  statute  of  frauds  unavailable  to  de- 
feat, 609. 
Defeat  of  loan  through  wrong  dimensions,  249. 
Defaulting  vendee,  broker  entitled  to  commission  on  actual  payments  by, 

500,  500a,  506. 
Defaulting  as  to  exchange,  party  not  liable  to  broker  for  commission,  1035. 

purchaser,  broker  has  right  of  action  against  for  lost  commission,  588. 
Default,  party  in  liable  for  commission,  163. 
Default,  purchaser  in,  broker  not  entitled  to  commission,  274,  556,  462. 

broker  in,  liable  to  pay  interest,  322. 

not  necessary  to  put  defendant  in  before  suing  for  fees,  617. 

in  an  exchange,  liable  for  commission  paid  broker,   163. 

to  entitle  broker  to  commission,  must  be  by  refusal  or,  of  principal, 
458. 
Defenses,  218,  675-703,  1029. 
Defects  in  principal's  title,  345. 
Defective  petition  for  commission  on  passing  of  title,  649. 

for  procuring  tenant,  in  not  alleging  to  sell,  650. 

for  selling  bonds,  652. 

in  not  alleging  agreement  stated,  654. 
Definitions.     See  Judicial  Con'structions  and  Inteepretationb. 

See  WoKDS. 
Delegated  authority,  2,  5,  987. 
Departures,  what  are  not,  669,  704,  704a. 

Description  of  property,  59,  123,  181,  267,  296,  428,  428a,  476. 
Demurrer,  640,  659-665. 
Demurrable,  alleging  sale  by  owner  ending  contract,  643. 

alleging  notice  of  double  employment  not,  646. 

incomplete  copies  of  unsigned  letters,  648. 

asking  judgment  for  excess  over  net  price,  on  refusal  to  sell,  655. 
Deposits,  50,  297,  805. 

Destruction  of  subject  matter  of  contract,  15. 
Delays,  18,  41,  292,  296. 
Diamonds,  434. 

Difference  in  price  principal  willing  to  sell  at  and  asked,  456. 
Dimensions  of  property,  249,  435,  451. 
Discretion,  acts  involving  broker  can  not  sub-delegate,  6. 
Dismissal  of  action,  when  proper,  863. 

when  error,  864,  1078. 

may  receive  evidence  after  motion  for,  833b. 
Disagreements,  143,  465. 

Dissolution  of  agency.     See  Agency,  Tebmutatiow  o». 
Dissuasion,  810. 


654  INDEX. 

[References  are  to  sections.] 

Division  of  commissions.    See  Shaking  Commissions. 
Double  liability,  305. 

compensation,  232,  254,  475,  559,  576. 

capacity,  306. 

payment  of  commissions,  burden  of  proof,  728a. 

employment  forbidden,  51. 

notice  or  knowledge  of  by  principal,  560. 
allegation  of  notice  of  not  demurrable,  644. 
Drunkenness,  601. 

Due,  when  commissions  become,  499,  499a,  499b. 
Discretion,  5,  111,  304,  3281,  825. 
Duplicate,  contract  in,  458. 
Duty  or  obligation,  165,  290,  291,  314,  344,  420,  420a,  456,  578,  656a. 


Earned,  when  a  broker's  commissions  are,  499a. 

commissions,  to  recover  immaterial  whether  broker  was  agent,  799a. 
owner  can  not  by  refusing  to  convey  defeat,  374a. 
Ejectment,  311,  595. 
Election  of  remedies,  414a. 
Employment  of  broker,  12,  13,  17,  21,  92,  564. 

sale  according  to  terms  of  entitles  broker  to  commission,  113. 

suffices  in  the  absence  of  ratification,  24. 

when  offer  to  pay  broker  does  not  show,  173. 

double  forbidden,  51. 

participation   in   exchange,   without,   ooes  not  entitle  broker   to  com- 
mission, 162. 

abandonment  of,  292,  558. 

in  absence  of,  introducing  purchaser  sometimes  insufScient,  450. 

of  engineer,  310. 

custom  insufficient  to  supply  lack  of,  626a. 

in  petition  for  commissions  must  allege  contract  of,  632a. 

of  broker  to  measure  land,  594. 
Employe  of  seller  defeating  sale,  broker  entitled  to  commission,  451. 
Encroachments,  228,  766. 
Entries  in  books  as  evidence,  748. 
Equitable  title  to  stock,  572. 
Equity,  314,  321,  572,  589,  967. 
Error,  to  prevent  showing  how  option  was  made  to  buyer,  106. 

to  grant  new  trial  to  set  up  exercise  of  option.  111. 

to  prevent  defendant  showing  broker  was  employed  by  other  party,  166. 

to  grant  judgment  for  full  amount  of  commission  when  loan  failed,  250. 

refusal  to  grant  non-suit  not,  1075a. 

in  awarding  verdict  to  real  estate  agent,  1075b. 
Errors,  1072-1078e. 


INDEX.  6S5 

[References  are  to  sections.] 

Escrow,  deed  in,  34. 

Estoppels,  107,  211,  246,  258,  329,  601,  839-862. 

Evidence,  contract  of  scle  may  be  established  by  circumstantial,  114. 

deed  of  conveyance  to  prove  exchange,  161. 

proof   necessary   to   recover   commission   for   exchange   when   not   con- 
summated, 189. 

execution  of  contract  prima  facie  evidence  of  title,  190. 

verdict  set  aside  as  against  the  weight  of,  252. 

admissible,  237,  729-761c. 

inadmissible,  184,  762-783b. 

immaterial,  174,  525,  784-803a. 

irrelevant,  804-809b. 

in  general,  810-833c. 

declarations,  777,  834-836. 

self-serving,  837. 

admissions,  34. 

admissions  against  interest,  838. 

verdict  must  be  palpably  against  weight  of  evidence  to  authorize  set- 
ting aside,  1055,  1056. 
Exceptions,  573. 

Exchange,  broker  for  commission  has  no  title  or  interest  in  property  ex- 
changed, 172. 

mere  offer  to  pay  broker  does  not  show  employment,  173. 

agreement  to  wait  for  earned  commissions  without  consideration,  174. 

broker   effecting,    entitled    to    commission,    though    terms   changed   by 
parties,  175. 

contract  of  held  to  be  severable,  176. 

defeated  by  lease,  broker  not  entitled  to  commission,  177. 

interfering  broker  not  entitled  to  commission  for  effecting,  178. 

defeated  by  failure  to  furnish  abstract  of  title,  broker  not  entitled  to 
commission,  179.  ^ 

broker  entitled  to  commission  where  purchaser  able  to  give  title  to 
property  in  exchange,  180. 

mistake  in  description  defeated  broker's  right  to  commission,  181. 

failure  of  conditional  agreement  to,  broker  not  entitled  to  commission, 
182. 

misrepresentation  by  agent  defeated  right  to  commission,  183. 

receipt  given  in  another  transaction  inadmissible,   184. 

for  amount  to  boot,  broker  entitled  to  commission  on  whole  value,  185. 

broker  entitled  to  commission  on  effecting  binding  contract  of,  186. 

broker  entitled  to  commission  on  producing  one  willing  to,   188. 

on  failure  to  consummate,  proof  necessary  to  recover  commission,  189. 

broker  earns  commission  when  both  parties  agree  on  terms  of,  191. 

broker's  right  to  commission  not  affected  by  failure  of  one  party  to 
perform,  192. 

failure  to  secure  transfers  defeats  right  to  commission,  103. 


656  INDEX. 

[References  are  to  sections.] 

Exchange,  value  of  land  in  may  be  shown  to  jury,  194. 

broker  not  entitled  to  commission  where  party  shows  bad  faith,  196. 

broker  not  entitled  to  commission  where  party  to  does  not  show  good 
faith,  438. 

broker  not  entitled  to  commission  for  an  exchange  with  unperformable 
conditions,  438. 

of  goods  for  land,  467. 
Exchanges  of  real  estate,  19,  41,  141-195,  290,  314,  382,  454,  468,  658,  676, 

609,   626,   764,  787,  796. 
Executors  and  administrators,  5,  34,  198,  280,  466,  493,  557,  587,  661. 
Exclusive  employment  as  broker  or  agent,  13. 

Excess  in  price  as  compensation,  11,  53,  142,  289,  290,  300,  320,  456,  481, 
482,  483,  484,  1040,  1094. 

when  broker  must  account  for  to  principal,  630. 
Exceptions,  573. 
Executed   sale,   767. 
Ex  maleficio,  trustee,  35. 
Exoneration,  308. 
Expenses,  15,  262,  289,  309,  561. 

Extra  compensation,  examined  to  see  whether  reasonable,  231. 
Experts,  228,  766. 


Failure  of  sale  by  disagreement,  41. 

by  defect  in  title,  459. 

by  purchaser,  460. 

by  failure  to  furnish  abstract  of  title,  179. 
Failure  to  sell  and  owner  selling  for  less,  148. 

of  consideration,  461. 

of  conditional  agreement,   182. 

of  broker  to  report  offer,  312. 

to  disclose  nominal  not  real  purchaser,  487. 

not  caused  by  fault  of  broker,  488. 

to  sell  all,  and  owner  selling  part  to  customer,  496. 

of  broker  to  disclose  best  terms  obtainable,  412. 

to  give  name  of  purchaser,  525. 

of  sale  by  dispute  over  taxes,  541. 

of  sale  after  memorandum  contract  signed,  542. 

of  sale  because  rights  of  two  heirs  not  acquired,  555. 

to  remove  snow  from  sidewalk,  broker  not  liable,  591. 

to  consummate  exchange,  189. 

of  one  party  to  perform,  191. 


INDEX.  657 

[References  are  to  sections.] 

Failure  to  secure  transfers  to  exchange,   193. 

to  report  loan  barred  commission,  235. 

of  purchaser  to  execute  mortgage,  274. 

of  broker  to  sell,  457,  543. 

to  consummate  contract  of  sak",  458,  460. 

of  proof,  1078c. 

to  consummate  exchanges  of  real  estate,  189,   192,  193. 

of  sale  through  deficiency  in  quantity,  451. 

of  owner  to  give  possession,  454,  464. 

of  owner  to  execute  contract  of  sale,  454,  456. 

of  customer  to  take  property,  551. 
Faith,  broker  acting  in  bad,  required  to  refund  commission,  163,  382,  554. 

broker  acting  in  bad,  forfeits  right  to  commission,  290. 

vendor  acts  in  bad,  by  giving  commission  to  purchaser's  agent,  401. 

broker  not  entitled  to  commission  where  party  to  exchange  does  not 
show  good,  195,  438. 

broker  not  responsible  for  misrepresentations  made  in  good,  165. 

broker  required  to  show  that  he  acted  in  good,  156,  290,  915,  921,  1012, 
1042. 

principal  revoking  contract  must  act  in  good,   15,  290. 

broker  undertaking  to  buy  at  exorbitant  price  not  evidence  of  good,  290. 
False  representations,  313,  314,  315,  319,  320,  321,  435,  454,  462,  1076. 
Father,  contract  signed  by  son  by  direction  of  insufficient,  18. 
Fault,  broker  entitled  to  commission  where  failure  not  caused  by  his,  449, 

464,  488,  533. 

sale  failing  without  fault  of  principal,  broker  not  entitled  to  commis- 
sion, 122. 

to  entitle  broker  to  commission  failure  must  be  due  to  principal's,  449. 

of  either  party  barred  broker's  commission,  558. 
Fictitious  purchaser,  314. 
Fiduciary  relations,  57,  291,  311,  314. 
Fidelity.     See  Duty.' 

Financial  responsibility  of  purchaser,  40,  41,  157,  158,  452,  468,  464,  658, 
628,  815,  1040a,  1053b. 

conditions,  463. 
Finding  a  purchaser,  11,  17,  42,  79,  113,  119,  129,  136,  397,  398,  462,  464, 

465,  482,  513,  523,  538,  955. 

after  revocation,  not  entitled  to  commission,  516. 
one  willing  to  exchange,  188. 

for  plaintiff  as  procuring  cause  excludes  co-o{)eration,  219. 
Findings  by  the  court,  1048-1053b. 

special  by  jury,  1099. 
Fire,  rebuilding  after  a,  42. 
First  broker  who  succeeds  entitled  to  commission.  41,  141,  445. 

entitled  to  commission  by  second's  relinquishment,  516. 
failure  to  give  notice,  291. 


658  INDEX 

IReferences  are  to  sections.] 

First  broker's  claim  for  commissions  binding,  211. 

mortgages,  agent  to  invest  confined  to,  264. 

payment  failing,  contract  to  be  void,  549. 

employer  given  first  right  to  purchase,  320. 

broker  entitled  to  commission  by  second's  interference,  444. 

payment,  broker  entitled  to  excess  from,  484. 

payment  failings  contract  to  be  void,  549. 

cash  payment,  when  not  a  condition  precedent,  557. 
Fixed  price.    See  Price  Fixed. 
Foreclosure  of  mortgages,  262,  500a. 
Foreign  principal,  42,  328a. 

Forfeitures,  41,  147,  290,  297,  313,  320,  462,  556,  557,  572. 
Forgery,  38,  351,  574. 
Fraud  of  broker  authorizes  his  discharge,  15. 

broker  selling  to  resell  no,  126. 

broker  buying  at  inadequate  price  by,  130. 

land  conveyed  by  grantor  in,  of  creditors,  155. 

mortgage  taken  by  lender,  bound  by  agent's,  62,  268. 

of  agent  in  appropriating  money  to  pay  off  mortgages,  273. 

of  agent  chargeable  to  principal,  313. 

of  broker  against  his  principal,  314. 

of  broker  against  third  persons,  315,  315a. 

of  sub-agent,  316,  390. 

of  principal  against  broker,  317. 

of  third  persons  against  broker,  318. 

of  principals  inter  se,  319. 

debatable  acts  of  broker  not  constituting,  320,  487. 

points  of  practice  in,  321. 

joint  owner  condoning  liable,  329. 

brokerage  contract  set  aside  for,  348. 

of  sub-agent,  broker  liable  for,  390. 

of  broker  may  give  rise  to  action  of  tort,  414.       ' 
Fraudulent  representations  to  principal  by  third  persons,  454. 


General  agent,  6,  35G. 

Gold,  loan  payable  in,  575. 

Goods  exchanged  for  land,  467. 

Grantee,  failure  to  insert  name  of  in  deed,  311. 

Gratuities,  466,  558,  560. 

Gross  price  changed  to  net,  485. 

Guardian  of  hiinbr,  57,  62. 


INDEX.  (^§9 

IReferences  are  to  sections.] 

H 


Heirs,  rights  of,  555. 

Homestead  and  exemption  laws,  239. 

Horse,  454. 

Hotel,  31,  781,  988. 

Houses,  sale  of,  69,  454,  493,  594,  830. 

renting  of,  19. 
Husband  and  wife,  39,  454,  774,  826,  908,  1022,  1057. 


I 

Identity,  50,  320,  831a. 

Ignorance  of  contract  by  holder  of  record  title,  540. 

of  principal  of  efforts  of  broker,  454. 

of  agent's  double  employment,  578,  1074. 
Illegal  purposes,  37,  326. 

contract,  327. 

declaring  bonds,  276. 

commissions,  recovery  of  denied,  522. 

sale  of  bonds,  broker  not  liable,  280. 
Illinois,  contract  for  sale  of  lands  must  be  in  writing,  79b. 

doctrine  as  to  use  of  seals,  592. 

contract  with  broker  to  sell  lands  must  be  in  writing,  590. 
Immaterial,  when  reasonable  time,  616. 

knowledge  by  principal  of  act  of  attorney  in  fact,  623. 
Immediately,  means  in  a  reasonable  time,  580. 
Improvement,  when  evidence  of  inadmissible,  783b. 

broker  without  authority  to  authorize  permanent,  42,  372. 

note  payablie  on  vendee  making  certain,  461. 
Implied  powers,  328. 

authority,  18. 

contract,  what  broker  must  show  to  recover  on,  712a. 

promise,  12. 

charge  error  that  no  leases  are  made  except  through  brokers,  201. 
Immunity  obtained  brom  liability,  601. 
Inability  to  perform,   15,  41,  380,  392,  454,  458,  46C,  462,  488,  500,  506, 

555,  656. 
Inconsistent,  instructions  held  not  to  be,  989,  1016,  1032,  104L 

charge  in  the  alternative,  1041a. 
Incumbrances,  313,  315. 
Indemnity,  of  agent,  299,  588a,  595. 
Indirect  acts  insufficient  to  establish  contract  relations,  69. 

acts  which  establish  contractual  relations,  69a. 


660  INDEX. 

[Referonces  are  to  sections.] 

Indiana,  contract  with  broker  to  sell  land  must  be  in  writing,  690. 

doctrine  of  quantum  meruii  applied  to  entire  contract,  546a. 

oral  contract  employing  broker,  wherever  made,  invalid,  590. 
Individual  liability,  when  principal  exempted  from,  38,  62,  328n. 
Individually,  leceipt  signed  by  broker  binds  him,  383. 
Independent  inquiries,  rendering  false  representations  unactionable,  464. 
Inference  of  authority,  what  insufficient  to  warrant,  381. 

of  law,  reasonable  price  an,  17,  292. 
Influence,  defendant  may  show  what  other  agents  exerted,  819. 

of  vendor  and  agent,  806. 
Information,  70,  282,  290,  314,  382,  399,  448,  557. 
Infant,  guardian  of,  62,  220. 

may  in  certain  cases  authorize  another  to  act  for  him,  2. 
Injunction  upon  sale,  broker  entitled  to  commission,  118,  469. 
Inoperative,   mere    insertion   of   word    in    contract   without   consideration, 

18,  19. 
Inquiry  from  broker  as  to  price  of  land,  indicates   representing  another, 

421a. 
Insolvendy,  57,  464. 
Insurance,  41,  325. 

company,  broker  not  agent  of,  71. 

company,  broker  entitled  to  commission  in  stock  of,  468. 
Instructions,  agent  must  follow  closely  his,  363. 

broker  departing  from  liable,  350. 

sub-agent  violating,  395,  520. 

See  also  Violating  Instbuctions. 
Installments,  payments  in,  67,  313,  470,  570. 
Intention  of  parties  shown  by  subsequent  dealings,  761a. 
Interest  or  interests. 

contract  coil  pled  with  an,  16. 

power  coupled  with  is  an  interest  in  land  itself,  16. 

disposition  of  principal's  in  subject  matter  of  agency,  works  revoca- 
tion, 22. 

fraudulent  purchase  of,  57. 

undivided,  63. 

of  tenant  in  common.  64. 

consolidation  of,  not  a  sale,  66. 

or  title  in  properties  exchanged,  broker  has  no,  172 

in  land  as  fee  for  procuring  loan,  251. 

broker  to  procure  loan,  not  authorized  to  collect  principal  or  interest, 
255. 

broker  liable  for  failure  to  collect,  270a. 

adverse,  290,  294,  345. 

concealment  of  by  broker,  291,  315. 

and  insurance  clauses  in  contract,  557. 

when  broker  is  and  when  not  liable  for,  322. 


INDEX.  661 

fReferences  are  to  sections.] 

Interest  or  Interests — Continued. 

date  from  which  recoverable  on  commissions,  322. 

broker  obtaining  hostile  to  principal,  323. 

broker  to  collect,  has  no  power  to  collect  principal,  355. 

broker  acting  in,  for  others,  cannot  share  in  transaction  for  principal, 
388. 

competing,  658, 

of  the  parties,  courts  to  protect,   17,  571. 

purchasers  had  in  the  land,  816. 

whether  or  not  entitled  to  on  commission  question  for  jury,  903. 

liability  for  commission  of  broker  depends  on  real  parties  in,  487a. 

of  minor,  914. 

too  high  authorized  setting  verdict  aside,   1068. 
Interfering  broker,   178,  389,  424,  444. 
Interlineation.     See  Alterations. 

Insufficient,  allegation  of  bringing  parties  into  touch,  645. 
Interpretation.    See  Judicial  Constructions  and  Interpretationb. 
Intermediation,  purchase  from  owner  without  broker's,  481. 
Interview,  24,  370,  988. 
Intoxication,   60. 

Introduction  of  prospective  purchaser,  68,  450. 
Invalid,  when  contract  not,   1092. 

sale,  broker  not  entitled  to  commission  for,  433. 
Interpleader,  when  bill  of  allowed,  630,  657. 

when  not  entitled  to,  658. 

evidence  in,  777. 
Irrigation,  66. 
Irrevocable,   mere   insertion   of  word   in  contract,   without  oonsideration, 

inoperative,  18,  19. 
Issues,  184,  867-873. 
Iowa,  doctrine  of  quantum  fneruit  applied  to  entire  contract,  546a. 

J 

Joint  liability,  407. 

Joint  owners,  42,  125,  319,  329,  960. 

Judgment  for  full  commission  error  when  loan  fails,  260. 

unauthorized  release  of  by  broker,  238. 
Judgments,   1065-1071. 
Judicial  sale,  115. 
Judicial   constructions   and   interpretations,   3,  367,   580,  582,   602a,    1001, 

1079-1131. 
Jury,  whether  broker  entitled  to  commission  for  both  auction  and  private 
sales,  question  for,  138. 

to  determine  value  of  land  exchanged,  194. 

charge  properly  refused  that  no  leases  are  made  without  brokers,  201. 


662  iNDSx. 

(References  are  to  sections.} 

Jury,  improper  to  submit  to,  whether  loan  broker  authorized  to  release  lien 
of  judgment,  238. 
agreement  as  to  commission  to  broker  to  procure  loan  a  question  for, 

253. 
whether,  in  taking  mortgage  with  wrong  description,  broker  guilty  of 

negligence,  a  question  for,  2G7. 
improper  to  charge  not  bound  by  any  rule  in  fixing  damages,  300. 
questions  to  be  determined  by,  888-929a,  1131. 
instructions  to,  930- 1047c. 
Justice,  amendments  allowable  in  furtherance  of,  673. 

K 

Kansas,  doctrine  of  quantum  meruit  on  entire  contracts  prevails  in,  546a. 
Knowledge  of  agent  binding  on  principal,  258. 

of  pool  and  acquiescence  in  by  principal,  371. 

by  broker  that  principal  owns  but  part  of  premises,  472. 

sometimes  immaterial  to  constitute  ratification,  623. 

by  principal   of  unauthorized   contract  a   prerequisite  to  ratifieation, 
17,  624. 

ratification  not  shown  by  acquiescence  without,  618. 

taking  conveyance  from  agent  with,  of  fraud,  314. 

when  facts  not  within  his,  broker  not  liable  for  misrepresentations, 
320. 

by  principal  that  agent  represents  both  parties  binds,  560. 


Land  warrants,  agent  buying  liable  for  value  of  land,  338. 

interest  in  as  commission,  251. 

sale  of  public,  146. 

withdrawal  from  sale  entitles  broker  to  commission,  120,  552. 

mortgage  confined  to  that  designated,  239. 

owned  by  bank,  328p. 

in  lieu  of  cash,  369. 

value  of  to  aid  jury,  194. 

authority  to  locate  and  convey,  339. 

not  necessary  to  describe  in  petition  for  commission,  59. 

vendor  cannot,  by  including  other,  escape  liability  for  oommission,  454. 

employment  of  broker  to  measure,  not  to  sell,  594. 
Law,  reasonable  price  inferred  by,  610. 

vendor  secretly  paying  commission  to  vendee's  agent  against  policy  of, 
the,  290. 

custom  must  be  general  before  it  will  be  declared,  598. 

of  place  of  performance,  when  it  governs,  1128. 

raises  presumption  where  usage  proved,  599. 


INDEX.  66S 

[References  are  to  sections.] 

Law,  improper  to  submit  question-  of  to  jury,  929a. 

contract  iield  not  to  be  in  violation  of  U.  S.  land,  1100. 
agent  authorized  in  fact,  but  inoperative  in,  no  recovery  against,  18. 
Lawyer.     See  Attobney  at  Law. 
T-iease,  power  to  sell  does  not  include  power  to,  167,  202,  337. 

exchange  defeated  by  broker  not  entitled  to  commission,  177. 

value  of  services  of  broker  in  negotiating,  196. 

lessor  refusing  to  accept,  197. 

broker  to  sell  does  not  earn  commission  by  procuring,  198. 

option  not  exercised  by  taking,  at  lower  rental,  199. 

with  privilege  of  purchase  equivalent  to  sale,  200. 

charge  properly  refused  that  implied  none  were  made  except  through 

brokers,  201. 
broker  secretly  securing  to  himself  holds  as  trustee,  203. 
entitled  to  commission  for  procuring  lessee,  204 
to  earn  commission  must  negotiate  lease  or  exchange  that  principal 

can  perform,  204a,  438. 
power  to  do  all  things  concerning  real  estate  authorized,  205. 
waiver  of  tenant's  privilege  of  purchase,  206. 
broker   empowered    to   collect   rents,   not   entitled   to    commission   for 

securing,  207. 
broker  for  tenant  has  no  claim  on  lessor  for  commission,  208. 
broker  to  secure  lessee  not  entitled  to  commission  for  option,  209. 
in  action  for  commission,  owrier  can  show  lease  to  another,  210. 
broker  bound  by  first  claim  for  commission  and  cannot  increase,  211. 
broker   securing  lease  for  five  years,  sale  at  second,  loses  remaining 

commission,  212. 
where  sub-letting  forbidtien,  oral  assent  of  agent  unavailing,  213. 
by  owner  after  broker's  contract  ended,  not  entitled  to  commission,  214. 
broker  bringing  about  the  sale  of  a,  entitled  to  commission,  215. 
sale  of  frustrated  by  lessor,  broker  not  entitled  to  commission,  216. 
broker  not  entitled  to  commission  where  plaintiff  refused  to  make,  216a. 
to  highest  bidder,  broker  preventing  not  entitled  to  commission,  217. 
in -action  for  commission  for  securing  defendant  can  show  it  was  merely 

tentative,  218. 
finding  as  procuring  cause  of,  excludes  co-opferation,  219. 
broker  to  secure  one  for  eight  years  to  earn  commission,  220. 
with  privilege  of  purchase,  328 j. 
not  entitled  to  commission  as  contract  not  a,  427. 
not  entitled  to  commission  until  effected,  560. 

of  real  estate,  42,  167,  177,  196-321,  328j,  337,  427,  438,  812,  1091. 
Legacies,  real  estate  broker's  commission  for  selling  proper  charge  against, 

34. 
Lender,  refusing  to  consummate  loan,  broker  not  entitled  to  commiss-ion, 

224. 
broker  held  not  to  be  agent  of,  256. 
bound  by  fraud  of  agent,  268.. 


664  INDEX. 

[References  are  to  sections.] 

Lessee,  broker  to  procure  not  entitled  to  commission  for  option,  93. 

broker  of,  securing  lease  to  himself,  holds  as  trustee,  203. 

broker  entitled  to  commission  for  procuring,  204. 
Ijessor,  cannot  refuse  to  accept  lease  and  defeat  broker's  right  to  commis- 
sion, 197. 

broker  for  tenant  has  no  claim  on  for  commission,  208. 

Tight  under  receipt  not  aiFected  by  broker's  secret  understanding,  221. 
Letter.    See  Correspondence. 
Liability  of  agent  to  principal. 

for  fraud  of  third  persons  in  privity,  314,  318. 

for  interest  on  money  received  and  not  invested,  322. 

for  negligently  failing  to  deduct  proper  amount  from  purchase  money, 
270a. 

for  understating  price  obtainable,  290,  412a. 

for  amount  of  price  withheld,  290,  309,  314,  321,  404,  414,  456,  481, 
672,  630. 

for  appropriating  all  the  purchase  money,  314. 

for  fraudulent  conduct,  subject  to  action  for  breach  of  contract,  414. 

for  overstating  price  of  purchase,  may  be  sued  for  excess,  298,  314,  806. 

for   buying   property   for   himself   and   imposing   on   buyer   at   higher 
price,  47. 

for    representing    persons    adversely    interested,    loss    of    commissions 
290,  321,  388. 

for  fraud  of  sub-agent,  316,  390. 

to  refund  commissions  when  he  has  acted  in  bad  faith,  323,  382,  674. 

for  profits  improperly  realized,  314. 

for  loaned  money  lost  on  insufficient  security,  229. 

for  money  lost  through  negligence,  230,  349. 

for  loss  incurred  through  departing  from  instructions,  350. 

for  clerk  wrongfully  buying  principal's  property,  301. 

for  loss  arising  from  not  recording  mortgage,  260,  349. 

for  loss  arising  from  loan,  when  examination  of  title  undertaken,  261. 

for  loss  through  improper  concealment,  291,  314. 

for  concealing  name  of  purchaser  for  fear  owner  would  advance  price,  291. 

for  having  interest  in  property  and  concealing  same,  291,  314. 

for  concealing  relations  to  lessee  and  asking  lessor  to  reduce  rent,  558. 

for  sub-agent  concealing  his  relations.  291,  588. 

for  concealing  purchaser's  name  and  substituting  fictitious,  41. 

for  representing  both  parties,  unless  both  knew,  208,  290,  314,  559. 

for  whether  principal  prejudiced  or  not  rule  applies,  559. 

for  appropriating  money  collected,  40.  314,  630,  642. 

for  willfully  disregarding  material  obligations,   22,  40,  41,  291,  2»8, 
314,  321,  415. 

for  misrepresentation  as  to  incumbrances,  313. 

for  negligence  in  procuring  loan,  235,  431. 

for  negligence  in  not  reporting  offer,  312. 

for  loBg  from  second  mortgage,  264,  349. 


INDEX.  665 

[Referennes  are  to  sections.] 

Liability  of  agent  to  principal — Continued.  , 

for  loss  of  trade  through  negligence,  346. 
for  fraud,  314. 

for  importuning  to  reduce  price  to  buyer,  314,  320. 
for  failing  to  disclose  best  terms,  412,  412a. 
for  inducing  customer  to  forfeit  contract,  313,  462. 
for  acting  in  bad  faith,  183,  290,  291,  314,  462. 
for  taking  title  and  refusing  to  convey,  35,  462,  .'5:?0. 
for  profit  in  reselling,  139,  299,  1089. 

for  representing  worthless  property  as  good  security,  229. 
for  money  paid  by  purchaser  and  forfeited,  462,  630. 
for  acting  in  the  interest  of  the  opposite  party,  295. 
for  advantage  derived  from  violation  of  duty,  290. 
for  placing  cloud  upon  title,  514. 

for  taking  insufficient  security  for  deferred  payments,  300. 
for  appropriating  money  to  pay  off  mortgages,  273,  314. 
for  securing  land,  under  warrants,  for  less  than  value,  338. 
for  negligently  taking  mortgage  under  wrong  description,  267,  899. 
for  failing  to  learn  exact  liability  under  mortgage,  270,  349. 
for  understating  mortgages,  41. 
for  failure  of  purchaser  to  execute  mortgage  and  make  cash  payment, 

274,  556. 
for  negligently  overpaying  vendor,  349. 
to  account  on  sale  of  trust  property,  35. 
as  member   of   purchasing  syndicate  not  entitled   to  commission,  29, 

38,  405. 
for  tax  title  acquired,  294. 

sub-agent  unable  tx)  recover  share  of  unlawful  commission,  622, 
for  property  acquired  at  grossly  inadequate  price,  291. 
for  erroneous  rental  statement,  558. 
for  money  received  from  a  purchaser,  559. 
for  failure  to  insure  principal's  property,  325. 
for  improperly  acquiring  principal's  property,  57,  290. 
for  secretly  purchasing  with  ostensible  buyer,  314. 
for  pool  to  divide  commissions,  371. 
for  buying  what  he  was  employed  to  sell,  658. 
for  fraudulent  act  of  guardian,  62. 
for  deed  improperly  secured,  57. 

for  deeds  improperly  secured  and  money  appropriated,  67,  314. 
for  note  improperly  taken  and  assigned,  572. 
for  improperly  entering  satisfaction  of  judgment,  238,  106S. 
for  money  paid  on  mortgages,  243,  269. 
for  the  sufficiency  of  the  security,  403. 

for  loan  <lefeated  through  wrong  dimensions,  known  to  broker,  24D.     ■ 
for  bonds  declared  illegal,  276. 

for  principal's  debt  paid  from  rent  receipts  without  authority,  386. 
for  selling  at  lower  price  than  authorized,  408. 


666'  INDEX. 

[Fiefc-rtnces  are  to  sections.] 

Litibility  of  agent  to  principal — Continued. 

for  violating  instructions,  299,  300. 

for  failure  to  collect  interest  due,  270a. 
Liability  of  agent  to  third  persons. 

for  fraud  upon  lender,  268. 

for  employing  sub-agent  without  authority,  24,  393,  398,  519. 

for  contracts  made  in  his  own  name,  41,  43,  76a,  383. 

for  unauthorized  sale  of  real  estate,  300,  307b. 

for  fraud  in  negotiating  contract  of  sale,  315. 

for  fraud  in  fiduciary  capacity,  311. 

for  misrepresenting  incumbrances,  315. 

for  excess  paid  by  purchaser,  314. 

for  excess  paid,  that  owner  would  not  sell  for  less,  298;  contra,  25,  456. 

for  fraud,  319. 

for  fraud  upon  the  court,  314. 

for  acting  for  undisclosed  principal,  279,  291,  601. 

for  money  to  be  repaid  if  sale  failed,  383. 

to  purchaser  for  money  received  in  bad  faith,  642c. 

for  bonds  sold  without  disclosing  principal,  279. 

for  purchasing  property  without  disclosing  principal,  588a. 

for  personal  property  withheld,  290,  315. 

on  warranty  of  authority  to  sell,  300. 

for  money  before  paid  to  principal,  385. 

to  vendee  for  purchase  money,  298,  321. 

for  excess  "ever  price  asked  by  vendor,  456. 

for  fraudulent  representations  ini^rolving  a  nominal  owner,  42,  315,  319. 

for  stipulation  bey/)nd  scope  of  authority,  560. 

to  refund  purchase  money  on  repudiation  of  contract,  563. 

for  deceiving  purchaser  as  to  commissions,  315. 

for  value  of  bonds  criminally  put  on  sale,  38,  574. 
Liabilty  of  principal  to  agent. 

for  commissions.    See  Commissions  akd  Compensation. 

for  connivance  with  sub-agent  in  fraud  of  agent,  316. 

to  compensate  sub-agent  for  sale  made  aftrt"  revocation,  521. 

to  compensate  if  agency  revoked  after  broker  has  buyer,  22. 

to  compensate  if  agency  wrongfully  repudiated,  23,  299,  300,  317,  454. 

agent  or  broker   rendering  valuable   service  may,   on   revocation,   stie 
fcT  breach,  299. 

administrator  employing  broker  personally  responsible,  34. 

for  commission,  when  he  paid  wrong  broker,  318. 

for  commission,  en  conveying  property  to  defeat  liability,  317,  487a. 

for  price  of  property  purchased,  588a. 

for  commissions,  on  appropriating  benefits,  24,  557. 

for   commissions,   on   appropriating  benefits,   where   employed  by   un- 
authorized third  persons,  24. 

to  broker,  if  he  knew  sub-agent  violated  instructions,  42,  316,  317". 


INDEX.  667 

[References  are  to  sections.] 

Liability  of  principal  to  agent — Continued. 

for  revoking  authority  to  collect  rents,  22. 

for  services  in  purchasing,  although  guilty  of  constructive  fraud,  23. 

for  warranty  of  authority  to  employ,  328n. 

what  he  must  do  to  escape  liability  for  commission,  331. 

when  he  cannot  escape  liability  for  commission,  362. 

when  paying  one  broker  no  further  liability  attaches,  370. 

liable  for  commission  on  taking  land  in  lieu  of  cash,  369. 

when  liable  on  refusing  to  sell  for  commission,  374. 

when  not  liable  for  commission  on  refusing  to  sell,  375. 

on  release  of  vendee  liable  to  broker  for  commission,  380. 

tenants  in  common  jointly  liable  for  commission,  407. 

for  misrepresentations  defeating  sales  for  commission,  454,  572. 

for  commission  depends  upon  real  parties  to  bargain,  487a. 

for  commission  on  changing  gross  to  net  in  contract,  485. 

for  share  of  profit  on  wrongful  sale  by  sub-agent,  497. 

for  commission  on  sale  at  lower  price,  unless  fixed  price  required,  502. 

for  half  of  remaining  unsold  land,  379. 

for  misleading  customer  to  buy  through  another  agent,  444. 

for  interfering  to  injury  of  broker,  444. 

for  commission  for  sale  effected  by  interfering  broker,  444. 

for  revoking  authority  and  selling,  444. 

when  corporation  not  for  commissions,  1075c. 
Liability  of  principal  to  third  persons. 

for  injuries  through  negligence,  42,  347. 

for  fraud  of  agent  through  misrepresentations,  99,  29,  313,  314,  315. 

for  fraudulent  misrepresentations  of  sub-agent,  316. 

for  commissions  paid  broker  by  opposite  party,  163. 

for  fraud  of  agent  to  extent  of  benefits  received,  36,  99,  316,  329,  856. 

for  loan  lost  through  fraudulent  knowledge  of  agent,  62,  268. 

for  sale  revoked  on  suit  of  vendee,  22,  130,  298,  404. 

on  note  and  mortgage  executed  by  authorized  agent,  23. 

to  purchaser  for  money  paid  to  agent,  299,  384,  385. 

to  purchaser  for  money  paid  agemt  after  his  authority  withdrawn,  41,  53. 

what  he  must  do  to  escape  liability,  331. 

to  purchaser  for  shortage  in  acreage,  299. 
Liability  of  third  persons  to  agents. 

employing  broker  without  disclosing  principal,  222,  398. 

vendor  on  refusing  to  sell,  for  commissions  lost  from  principal,  300. 

purchaser  for  commissions  on  agreement  of  non-interference,  21. 

purchaser,  for   commissions,   although   broker   had   agreed   to   look   to 
vendor,  588. 
Liability  of  third  persons  to  principal. 

party  cognizant  of  agent's  concealment,  cannot  hold  property  against 
principal,  291. 

vendor  for  commissions  paid  purchaser's  agent,  40,  290. 


668  INDEX. 

[References  are  to  sections.] 

Liability  of  third  persons  to  principal — Continued. 

for  profits  realized  through  fraud  of  agent,  35,  314. 

for  oommissions  paid  broker,  from  party  in  default,  163. 

for  commissions  paid  wrong  agent  through  misconduct  of  vendee,  318. 
Liability  between  third  persons 

nominal,  owner  to  purchaser  for  fraud  of  owner  and  broker,  42,  315,  319. 

R.  R.  company  for  bonds  criminally  released  from  registry,  38,  674. 

joint  owner  wrongfully  acquiring  moiety,  319. 

joint  owner  for  benefits  received  through  fraud  of  agent,  329, 
License  by  State  or  municipal  authority,  9,   124,  558,  676,  604,  628,  631, 
800,  1037. 

to  cut  timber  beyond  power  of  broker,  330. 

a  single  sale,  not  doing  business  to  require  a,  576. 

internal  revenue,  576. 

auction  sale  does  not  require  a,  576. 
Lien,  equitable,  29. 

broker  has  for  commission  on  securities  in  his  hands,  283. 

broker  has  for  fees  on  funds  to  loan  in  his  hands,  284. 

in  the  absence  of  contract,  broker  without  lien,  285. 

where  broker  has,  it  exists  only  while  he  holds  property,  286, 

of  broker  confined  to  securities  afi"ected,  287. 

broker  has  none  for  loan  on  trust  estate,  288. 

expense  of  releasing  falls  on  principal,  289. 

commissions  assumed  by  vendee  not  a  lien  on  property,  289a. 

demand  of  $10,000  to  release  defeated  oommissions,  614. 
Limitations  and  restrictions,  12,  14,  577. 
Limitations,  Statute  of.     See  Statxtte  of  Limitations. 
Litigation  by  third  persons,  473. 

Loan,   broker  for   seller  obtaining  to   buyer   from   seller,   not   entitled  to 
commission  from  buyer,  232. 

broker  procuring  agreement  to  make  insufficient,  225a. 

broker   procuring  less   than   asked,   accepted,  entitled   to   commission, 
233,  429. 

broker  entitled  to  commission  on  finding  lender,  226a,  234,  430. 

broker  not  reporting  barred  commissions,  235,  431. 

in  action  for  commissions  for  procuring  not  necessary  to  prove  tender, 
236. 

admissibility  of  correspondence  to  establish  agency  in  making,  237. 

broker  entering  release  of  judgment,  improper  to  submit  question  to 
jury,  238. 

broker's  authority  to  provide  mortgage  for  confined  to  land  designated, 
239. 

principal  curing  defect  in  title,  lender  then  refusing,  broker  entitled 
to  commission,  240. 

not  made,  broker  must  prove  title  not  good,  240a. 

broker  charging  more,  entitled  to  statutory  commission  for  making,  241. 


INDE5X.  669 

[Referonces  are  to  sections.] 

Loan,  broker  entitled  to  commission  for  procuring,  though  principal  refuses 
to  take,  242. 

broker  not  entitled  to  commission  unless  loan  made,  242a. 

broker  to  whom  borrower  paid  commission  his  agent,  243. 

money  put  in  bank  subject  to  broker's  check,  not  agent  of  lender,  244. 

owner  himself  securing,  not  liable  to  broker  for  commission,  245. 

owner  refusing  on  one  ground  to  take,  subsequently  estopped  to  set 
up  another,  246. 

broker   failing   to    secure,    principal    securing   from   same   party   bars 
commission,  247. 

broker  to  examine  title  and  secure  loan  barred  commission  on  failure 
by  defect  in  title,  248. 

defeated  through  wrong  dimensions  known  to  broker  bars  commission, 
249. 

error  to  grant  full  commission  when  failure  by  defect  in  title,  250. 

interest  in  land  to  attorney  for  procuring,  251. 

verdict  for  broker  for  procuring  set  aside,  252. 

agreement  as  to  commission  for  procuring  a  question  for  jury,  253. 

to  purchaser  on  other  property  makes  seller's  broker  his  agent,  254. 

"broker  to  procure,  not  authorized  to  collect  principal  or  interest,  255. 

builder's,  282. 

broker  procuring  for  trust  estate  has  no  lien  thereon,  288. 

payable  in  gold,  575. 
Loan  company,  securities  payable  at,  not  thereby  agent  to  collect,  257. 
Loans  on  real  estate,  71,  222-254,  564,  566,  575,  818,  1093. 
Tx)an,  one  employing  broker  to  obtain  liable  for  commission,  222. 

when  refused  for  bad  title  broker  not  entitled  to  commission,  223. 

when  lender  refused  to  consummate,  broker  not  entitled  to  commission, 
224. 

when  broker  not  entitled  to  commission  for  conditional  loan,  225. 

procuring  agreement  to  make  not  the  same  as  procuring  a,  225a. 

broker  to  recover  for,  must  show  on  terms  authorized,  226. 

on  question  of  commission  former  agreement  ignored,  227. 

reasonable  value  of  broker's  services  for  may  be  shown,  228. 

broker  liable  for  loss  on  insufficient  security,  229. 

broker  bound  to  make  good  money  lost  through  his  negligence,  230. 

bill  for  services  for  procuring  separated  to  see  if  reasonable,  231. 
Loss,  recovery  should  be  limited  to  the  actual,  572. 
Lots,  power  to  sell  in,  6,  18,  340,  494,  587,  961. 

sold  out  of  order,  broker  not  entitled  to  commission,  307c. 


M 

Maker,  when  and  where  warranted  in  paying  note,  353. 

Manner  in  which  written  contracts  with  brokers  should  be  oonstrued,  602a. 


670  INDEX,  \ 

[References  are  to  sections.] 

Measure  land,  employment  to  does  not  sustain  claim  for  selling,  694, 
Meeting  of  minds,  33,  73,  290,  293,  557    929b,  969. 
Memorandum,  insufficient  to  satisfy  statute,  606. 

sufficient  to  satisfy  statute,  590. 

signed  by  auctioneer  binds  buyer  and  seller,  30. 

admissible  in  evidence,  734. 
Mental  capacity,  want  of  to  employ  broker,  290. 
Methods  of  earning  commissions,  474. 

of  payment,  478. 
Michigan,  contract  to  sell  land  must  be  in  writing,  79b. 

doctrine  of  quantum  meruit  on  entire  contracts,  546a. 
Middleman,  320,  475,  557,  559,  578,  977,  1088. 
Mine,  sale  of,  12,  24,  34,  111,  300,  315,  476,  559,  572,  601. 
Mineral  and  gas  deposits,  1025. 
Minor,  guardian  of,  57,  62,  220. 
Miscarriage  of  notice,  454,  458. 

of  sale  without  fault  of  principal,  122. 
Misconduct  of  broker,  313. 

Mislead,  whether  plaintiff  attempted  to  question  for  jury,  920. 
Misrepresentations,   40,   41,    165,    183,   290,   296,   299,   313,   315,   318,   320, 

328n,  451,  454,  572,  601,  862a. 
Mississippi,  doctrine  of  quantum  meruit  on  entire  contract,  546a. 
Missouri,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 

contract  to  sell  lands  must  be  in  writing,  79b. 

doctrine  of  quantum  meruit  on  entire  contracts,  546a. 
Mistakes,  181,  321,  341. 

unless  pleaded  and  proved  joint  purchaser  bound  for  whole  commission, 
579. 
Misunderstanding,  of  contract  by  principal,  557. 
Modifications,  22,  24,  411,  458,  477,  478,  479,  906a,  954a. 
Money,  broker  to  sell  can  take  nothing  else,  342. 

broker  has  no  right  to  receive  Mexican,  343. 

broker  for  seller  accepting  from  purchaser  against  public  policy,  559. 

received  by  broker  from  purchaser  belongs  to  principal,  559. 

broker  advancing  and  taking  deed  to  self,  holds  absolutely,  368. 
'  broker  to  sell  includes  authority  to  receive  purchase,  328e,  f. 

received  by  broker  from  purchaser  belongs  to  principal,  559. 

counts.     See  Common  Counts. 
Moral  obligation,  supports  subsequent  written  promise  to  pay  commissions, 

590. 
Mortgages,  41,  239,  258-275,  314,  386,  483,  558,  1051. 
Mortgage,  authority  to  provide  confined  to  land  designated,  239. 

purchaser  bound  by  agent's  knowledge  and  cannot  dispute,  258. 

mortgagee's  right  to  have  reformed,  258. 

broker  selling  under  power  in  need  not  inform  mortgagor,  259. 

broker  failing  to  record  liable  for  loss,  260. 


INDEX,  671 

[References  are  to  sections.] 

Mortgage,  broker  liable  for  loss  through  unpaid,  261. 

broker  not  entitled  to  charge  expenses  for  foreclosing  personal  mort- 
gage to  principal,  262. 

power  to  sell  does  not  include  power  to,  263. 

broker  to  invest  money  confined  to  first,  264. 

broker  making  loan,  knowing  of  prior,  principal's  subordinated,  265. 

power  to  purchase  gives  none  to  secure  by  mortgage,  266. 

whether  agent  taking  by  wrong  description  guilty  of  negligence  ques- 
tion for  jury,  267. 

taken  by  lender  bound  by  fraud  of  agent,  268. 

payment  on  to  seller's  agent  did  not  bind  mortgagee,  269. 

broker  liable  for  negligence  in  failing  to  learn  liability  under  a,  270. 

broker  liable  for  loss  on  taking  on  other  and  not  on  land  sold,  271. 

broker    securing   conditional   sale   of,   not  consummated,   not   entitled 
to  commission,  272. 

fraud  of  broker  in  appropriating  money  to  pay  off,  273. 

failure  of  purchaser  to  execute  mortgage  barred  commission,  274. 

in  computing  commission  mortgage  treated  as  part  of  price,  275. 

authority  to  sell   for  specific  sum  did  not  authorize  part  cash  and 
mortgage,  422. 
Mortgagee's  interest  in  property,  539. 
Motions,  666. 


N 

Name  of  purchaser,  Concealment  of  by  broker,  291,  314,  487,  525,  530. 
Nebraska,  valid  conveyance  or  enforceable  contract  to  entitle  broker  to 
commission,  41. 

contract  with  broker  to  sell  land  must  be  in  writing,  590. 

doctrine  of  quantum  meruit  on  entire  contract,  546a. 

contract  to  sell  lands  must  be  in  writing,  79b. 
Necessary  allegations  and  proof  to  enable  broker  to  recover  commission, 

637a. 
Negative,  propositon  not  proved  until  inconsistent  with,  582. 
Negligence,  230,  260,  261,  267,  270,  271,  325,  346,  347,  349,  572,  899,  913. 
Negotiations,   where   neither   broker   selling  nor   principal    had  notice   ^£ 
other's,  489. 

owner  misleading  customer  to  buy  through  another  liable,  444. 

owner  breaking  into  and  selling  to  customer  liable,  444. 

unauthorized  not  ratified  by  sale  to  customer,  415,  443. 

with  two  jointly,  sale  by  owner  to  one  bars  commission,  432. 

with  one,  and  sale  by  owner  to  him  and  another  bars  commission,  437. 
Net  rental,  meaning  of  the  term,  171. 

price,  481,  482,  483,  484,  485. 
Neutral,  principal  may  remain  as  to  broker's  claims  for  commission,  681. 


672  INDEX. 

[References  are  to  sections.] 

New  Hampshire,  contract  to  sell  land  must  be  in  writing,  79b. 
New  Jersey,  contract  to  sell  land  must  be  in  writing,  79b. 

contract  with  broker  to  sell  land  must  be  in  writing,  576,  590. 
New  York,  contract  with  broker  to  sell  land  must  be  in  writing,  590. 
New  trial,  error  to  grant  to  set  up  exercise  of  option.  111. 
Non-performance,  488. 
Non-suit,   865,   1075a. 
Non-resident  employing  broker,  11,  42,  328a. 

owner,  one  buying  from  through  agent  bound  to  ascertain  extent  of 
authority,  18. 

purchaser,  314. 
Notes,  promissory,  314,  351,  352,  353,  354,  355,  356,  357,  461,  462,  483, 
566,  572,  574,  817a,  817b. 

purchase  money,  duty  of  principal  to  collect,  420. 
See  also  Pukchase  Money. 
Notice,  telegraph  company  not  agent  of  owner,  80. 

to  partnership  of  revocation  of  authority,  37. 

when  not  necessary,  259,  799. 

terminating  agency,  15. 

how  must  be  given  to  bind  principal,  359. 

to  principal  by  broker  on  finding  customer,  360,  471. 

when  waived,  361. 

of  revocation,  15. 

mi8ca.rriage  of,  454,  458. 

absence  of  deprives  of  right  to  commission,  489. 

principal  selling  before  expiration  of  time  without,  490. 

immediate  means  in  a  reasonable  time,  580. 

failure  to  instruct  as  to  not  error,  1009a. 

of  customer  by  broker,  and  sale  after  by  owner,  454. 
Nominal  sale,  broker  not  entitled  to  commission  for,  116. 

damages,  when  broker  restricted  to  recovery  of,  300,  358,  563. 

purchaser,  487,  607. 

owner,  315,  319. 
Novation,  425,  557,  560,  588,  1096. 
Null  and  void,  57,  279. 

See  also  Void. 
NiKium  pactum,  19,  42,  174,  303,  462. 


Object,  defendant  cannot  when  sale  for  less  than  broker  claims,  627. 
Objection  to  price  of  horse  and  sale  by  vendor  to  another,  broker  entitled 
to  commission,  454. 
after  acceptance  that  purchaser  unable  to  pay  unavailing  to  defeat 

commission,  454. 
to  terms  of  sale  evidence  that  eonformed  to  directions  given,  368.  , 


INDEX.  673 

[Reference"?  are  to  ejections.] 

Objectionable,  instruction  not,  as  submitting  an  issue  not  pleaded,  932. 

Obligation,  release  of  vendee  from,  380. 

Obligations,  plaintiff  bears  burden  of  proving  discharge  of,  716. 

owner  not  under  to  extend  time  to  broker,  15. 

of  married  woman  under  Pennsylvania  law,  39. 

broker  disregarding  cannot  recover  commission,  290. 

fraud  of  agent  relieved  principal  from,  314. 

purchaser  putting  lot  to  objectionable  use,  did  not  relieve  from  to  pay 
broker,  557. 

when  not  relieved  from  to  broker  for  commission,  42. 

See  also  Duty. 
Offer  to  pay  broker,  when  it  does  not  show  employment,  173. 

failure  of  broker  to  report,  31'' 

sub-agent  obtaining  in  advance  of  bids,  395. 

reporting  in  excess  of  that  given,  491. 

of  same  amount  previously  made  by  proposer  to  owner,  558. 
Office  of  lender,  note  payable  at  not  authority  to  collect,  566. 
Ohio,  contract  to  sell  land  must  be  in  writing,  79b. 
Opinions,  as  evidence,  776,  776a,  825,  975a. 

public,  intensifying  insufficient  consideration,  21. 
Options,  sales,  exchanges,  leases,  loans,  etc.,  pt.  2,  Sec.  82-289a. 
Options,  23,  34,  38,  79,  82-111,  199,  314,  485,  557,  691a,  691b,  1033,  1061. 

contract  to  take  over  net  price  an  agency,  not  an,  82,  1083. 

broker  to  procure  entitled  to  recover  compensation,  83. 

subject  to  revocation,  principal  liable  to  broker  on  finding  puroiiaser, 
84. 

broker  to  sell,  procuring  mere,  not  entitled  to  commission,  85. 

customer  exercising,  broker  entitled  to  commission,  86,  96. 

whore  principal  held  only  at  time  of  sale,  his  liability,  87. 

broker  who  took  to  buy,  not  agent  to  sell,  88. 

exercise  of  revokes  contract  of  agency  to  sell,  89. 

agreement  to  sell,  etc.,  a  mere,  90. 

sale  by  owner  subject  to,  not  breach  of  contract,  91. 

on  sale  under  an,  broker  not  entitled  to  commission,  92. 

broker  to  procure  lessee,  not  entitled  to  commission  for,  93. 

owner  concluding  for  whole  tract,  may  refuse  offer  for  part,  94. 

subject  to  withdrawal,  no  commission  earned,  95. 

contract  of  exchange,  held  a  mere,  97. 

when  co-agent  not  bound  by,  98. 

and  title  bond  to  insure  sale,  99. 

at  best  price,  means  satisfactory  to  purchaser,  100. 

unexercised,  subsequent  sale,  broker  not  entitled  to  commission,  101. 

broker  to  secure  two,  principal  rescinds  one,  liable  for  breach,  102. 

broker  not  entitled  to  commission  for  procuring  part  of,  103. 

broker  obtaining  price  from  owner,  a  naked.  104. 


674  INDEX. 

[References  are  to  sections.] 

Options,  given  and  extended,  broker  acting  as  purchaser,  105. 

error  to  prevent  defendant  showing  how  made  to  purchaser,  106. 

defendant  giving  broker,  estopped  to  claim  purchaser,  107. 

defendant  may  show  purchaser  took  subject  to  securing  adjoining  lot» 
108. 

what  owner  may  show  to  corroborate  claim  of,  109. 

held  not  expired  when  sale  made  by  owner,  110. 

error  to  grant  new  trial  to  set  up  exercise  of.  111. 

to  lease  not  exercised  by  taking  at  lower  rental,  199. 

broker  to  secure  lessee,  not  entitled  to  commission  for  securing,  209. 

power  to  sell  does  not  include  power  to  give  an,  337b. 

evidence  showing  contract  an,  and  not  a  sale,  691a,  691b. 
Oral  agreement,  when  admissible  in  evidence,  321. 

contract  of  agent  sub-letting  unavailing,  213. 

contract,  broker  to  make  written  cannot  make,  363. 

authority,  broker  under  cannot  bind  by  written  covenants,  364. 

contract  of  broker  binds  unnamed  principal,  583. 

contract  followed  by  written,  492. 

evidence,  749,  749a,  769,  831,  833. 
Owner,  42,  80,  81,  88,  92,  104,  109,  110,  125,  142,  169,  210,  214,  222,  245, 
246,  347,  413,  416a,  481,  482,  485. 


P 

Parol.    See  Obal. 

Part  cash  and  mortgage,  when  not  authorized,  422. 

Part,  on  concluding  option  for  wholo  tract,  owner  justified  in  refusing  offer 
for,  94. 

broker  entitled  to  commission  f      selling,  entitled  to  same  rate  for  all, 
495,  496. 

principal  must  accept  or  reject  as  an  entirety,  24. 

principal  cannot  defeat  commission  by  indirect  sale  of,  454,  458. 

knowledge  by  broker  that  principal  owns  but,  472. 
Partial  payment,  broker  entitled  to  commission  on,  570. 

performance  insufficient  to  earn  commission,  509. 

payment  of  price,  when  must  be  shown,  557. 

performance  affords  no  right  in  equity,  589. 
Participancy  in  wrong,  absence  of,  497. 

in  exchange,  without  employment,  does  not  earn  commission,  162. 
Particular  point,  immaterial  if  principal  and  customer  agree  generally,  557. 
Parties,  together,  bringing,  though  they  contract  on  different  terms,  532. 

to  the  bargain,  liability  to  broker  for  commission  depends  upon  real, 
487a. 
Partition,  sale  frustrated  through  failure  to,  broker  entitled  to  commis- 
sion, 508. 
Partnership,  22,  25,  37,  535,  563,  584,  630,  760,  814. 


INDEX.  675 

[References  are  to  sections.] 

Payable  on  sale,  commissions  are,  498. 

when  contract  made  with  purchaser,  commissions  are,  499. 

on  receipt  of  price,  broker  not  entitled  to  commission  before,  503. 

upon  completion  of  transaction,  commissions  are  usually,  504. 

note  at  office  of  broker,  not  entitled  to  collect,  566. 

commission  out  of  last  cash,  must  aver  same,  653. 
Payment  by  defaulting  vendee,  broker  entitled  to  commission  on,  500,  606. 

broker  entitled  to  excess  as  commission  from  first,  484. 
Payment,  contract  to  be  void  if  first  failed,  549. 
Penal,  contract  held  to  be,  requiring  strict  construction,  586. 
Penalty  provided  exclusive,  576. 
Pennsylvania,  laws  of,  38,  576. 

contract  to  sell  lands  must  be  in  writing,  79b. 
Performance,  mere  approval  of  contract  not  acceptance  of,  667. 

when  law  of  place  of  governs,  1128. 

partial  entitles  broker  to  recover  neither  on  contract  BOr  OB  qucmtutn 
meruit,  509. 

recovery  without  showing,  641. 

where  broker  not  entitled  to  commission  as  for  full,  247ft* 

when  full  does  not  take  case  out  of  statute,  590. 

contract  by,  455,  567. 
Performed  his  undertaking,  broker  not  entitled   to  commissions  until  he, 

546,  556. 
Pension,  54. 

Permanent  improvements,  42,  372. 
Personal  contract,  promise  by  administrator,  9i, 

action  against  trustee,  35. 

acts  undelegatable,  4,  5. 

property,  when  broker  cannot  take,  290,  315. 
Petition  or  complaint,  160,  632-656. 

defective,  160,  633,  634,  649,  650,  C52. 

failing  to  prove  agreed  may  receive  reasonable  compensation,  639. 

demurrable,  643,  648,  654,  655,  G59-(;C5. 

insufficient,  645. 

failing  to  show  written  contract,  alleged  benefits  immaterial,  647. 
Pool  to  divide  commissions,  371. 

Possession  undisputed  for  years,  authority  rf  aj;cnt  presumed,  366. 
Possession,  when  taking  ratifies  act  of  agent,  24. 

failure  of  owner  to  give,  454. 
Plantation,  interpretation  of  broker's  authority  to  sell,  1124. 
Plat  and  sell,  a  contract  with  broker  to,  147. 
Pleadings,  practice  and  judicial  constructions  and  interpretations,  Pt.  6, 

Sec.  559-1131. 
Postponement  by  purchaser,  365. 
Power  of  attorney,  18,  26,  57,  63,  167,  202,  206,  259,  263,  266,  332. 

of  delegating  authority,  2. 


676  INDEX. 

[References  are  to  sections.] 

Power  of  attorney,  of  becoming  agents  inherent,  3. 

to  sell  does  not  include  to  cut  timber,  330. 

to  sell  does  not  include  to  lease,  202. 

confirming  sales  confers  power  to  sell,  332. 

to  do  all  things  concerning  real  estate  confers  authority  to  leaso,  205. 

to  sell  land  acquired  afterward,  333. 

to  sell  land  sold  but  not  conveyed,  334. 

to  sell  land  an  credit  may  receive  payment,  335. 

to  sell  for  settlement,  when  not  violated,  336. 

to  sell  land,  not  to  lease  or  exchange,  337,  167. 

to  sell  land  not  power  to  give  an  option,  337b. 

to  locate  and  survey,  not  power  to  sell,  339. 

to  sell  in  lots,  cannot  sell  otherwise,  340. 

mutual  mistake  as  to  creates  no  liability,  341. 

unless  clothed  with  by  the  owner,  no  one  can  transfer  title,  413. 

to  sell  and  convey  land  includes  to  give  covenants  of  warranty,  417. 

in  other  States  power  must  be  specifically  conferred,  418. 
Practice,  points  of  in  actions  for  fraud,  321. 
Preventing  bidding,  217,  441. 
Presumption  of  revocation  by  sale  of  property,  15. 

of  agent's  authority  by  undisputed  possession  for  years,  366. 

after  revocation  that  broker  acts  for  purchaser,  421. 

that  plaintiff  was  licensed  from  absence  of  evidence  to  the  contrary, 
576. 

that  agent  contracted  with  reference  to  usage,  599. 
Presumptions,  in  general,  628. 
Price  fixed,  12,  24,  42,  61,  142,  200,  422,  426,  502,  558,  559,  998. 

asking  and  obtaining  does  not  establish  employment,  17. 

when  lower  a  sufficient  consideration,  21. 

contract  to  take  beyond  net,  agency  and  not  option,  82. 

obtained  by  broker  a  naked  option,  104. 

increased,  broker  entitled  to  more  commission,  115. 

broker  buying  at  inadequate  by  fraud,  130. 

lower,  sale  by  second  to  client  of  first  broker,  141. 

where  broker  might  have  gotten  better,  not  entitled  to  commission,  290. 

mortgage  treated  as  part  of,  275. 

broker  understating  price  obtainable,  liable  to  principal  for  loss,  412a. 

broker  not  entitled  to  full  commission  until  paid,  470. 

broker  entitled  to  excess  as  compensation,  456. 

net  to  owner,  broker  does  not  take  excess,  481. 

net,  broker  selling  thereat  not  entitled  to  commission,  482. 

net  to  owner  and  note  for  excess  to  broker,  483. 

net,  broker  entitled  to  commission  from  first  payment,  484. 

owner  changing  gross  to  net  liable  for  commission,  485. 

commissions  payable  on  receipt  of  503,  570. 

sub-agent  selling  at  reduced,  not  entitled  to  commission,  524k 


INDEX.  677 

[References  are  to  sections.] 

Price,  broker  guilty  of  fraud  in  asking  reduction  of,  314» 

broker  secretly  learning  and  sending  customer,  399. 

broker  not  entitled  to  commission  for  sale  at  less,  426. 

principal  liable  for  commission  for  sale  to  customer  at  lower,  602. 

■sub-agent  not  entitled  to  recover  for  sale  at  lower,  524. 

sub-agent  entitled  to  commission,  though  concealed  name  of  buyer,  526. 

if  payment  of  necessary,  must  be  shown,  557. 

receipt  of  before  broker  entitled  to  commission,  670. 

reasonable  inferred  by  law,  610. 

broker  cannot  collect  fee  from,  373. 
Prima  facie  evidence,  contract  signed  by  purchaser,  117. 

evidence  of  title,  contract  to  convey,  159,  190. 

case,  57,  866. 
Principal  and  agent,  30,  51. 

broker  to  procure  loan  not  authorized  to  collect  interest,  252. 

approval  of,  47. 

signature  of  by  agent,  74,  75,  76,  77. 

what  he  must  do  to  escape  liability,  331. 

paying  one  broker  not  liable  to  another,  370. 

selling,  broker  may  recover  on  a  quantum  m/eruit,  511,  512. 

paying  commissions  before  purchaser  withdraws,  cannot  recover,  654. 
Privity,  11,  25,  35,  314,  318,  393,  454. 
Proceeds,  commissions  payable  from,  223,  495,  501. 
Procuring  a  purchaser.    See  Finding  a  Pukchaseb. 
Procuring  cause  of  lease,  219. 

Procuring  cause  of  sale,  17,  25,  305,  443,  446,  471,  489,  743,  809b,  934,  934a, 
934b,  954,  994a,  1024,  1032. 

cases  where  broker  held  not  to  be,  292,  507. 
Procuring  cause  of  the  transaction  a  question  for  jury,  896. 
Profits,  when  broker  liable  to  principal  for,  35,  139,  314,  565. 

when  principal  liable  to  broker  for,  16,  300,  320,  497,  1103,  1104, 

broker  to  have  part  of,  not  entitled  on  failure  by  defect  in  title,  635. 

broker  to  share  in  profi/ts  not  a  partner,  584. 

anticipated  may  be  recovered  as  damages,  299,  300. 
Proportionate  commissions,  440,  447,  493,  632a. 
Proposition,  counter,  56. 
Property,  description  of,  59. 

accepted  in  lieu  of  cash,  369,  376. 

broker  purchasing  not  entitled  to  commission  for  sale,  389,  658. 

fact  that  principal  does  not  own,  does  not  bar  commission,  454. 

renting  of,  558. 
Proposition,  not  proved  until  inconsistent  with  negative,  582. 

instruction  in  regard  to  erroneous,  968. 
Public  policy,  doctrine  of,  314,  569. 
Puffing,  586. 
Purchase  money,  16,  41,  368,  373,  601.    See  also  Nonas  fob. 


678  -INDEX. 

[References  are  to  sections.] 

Purchaser  or  vendor,  41,  84,  100,  105,  106,  107,  108,  117,  129,  131,  136, 
145,  146,  180,  254,  258,  380,  384,  385,  387,  388,  450,  460,  465,  487, 
630. 

bona  fide,  607. 

acting  for  another,  452,  487. 

ostensible,  314. 

refusing  who  knew  right  length  of  lot,  broker  barred  commission,  435. 

failure  of  to  carry  out  contract,  460. 

paying  more  than  authorized,  broker  entitled  to  commission,  505. 

each  bound  for  the  whole  commission  to  broker,  579. 
Purchase  money,  broker's  right  to  commission  not  defeated  because  to  be 
paid  from,  501. 

money  paid,  repudiation  by  vendee  bars  recovery,  23. 

money,  broker  without  authority  cannot  retain  commission  from,  373. 

failure  to  return  entitles  broker  to  commission,  454. 

privilege  of,  42,  200,  328 j. 

by  agent  for  himself,  circumstances  authorizing,  389c 


Quantum  meruit,  partial  performance  insufficient  to  recover  om  contract 

or,  509. 
agent  procuring  responsible   tenant  entitled  to  recover  on,  510. 
principal  selling  to  customer,  broker  entitled  to  recover  on,  511. 
principal  selling  for  less  than  agreed  price,  broker  entitled  to  recover 

on,  512. 
in  absence- of  express  contract,  broker  may  recover  on,  513. 
in  absence  of  fixed  rate  measure  of  broker's  compensation,  513a. 
in  some  States  recovery  may  be  had  for  partial  performance  on  a,  546a. 
subject  of,  587. 
where  sale  not  consummated  broker  must  prove  negotiations  rendered 

fruitless  by  fault  of  land  owner,  in  order  to  recover  on  a,  637a. 
instruction  rightly  refused  that  if  entitled  to  anything  confined  to  a, 

1015. 
finding  in  an  action  on  a,  1049. 
finding  on  express  contract,  finding  against,  1050. 
Quantity  contracted  for,  broker  entitled  to  commission  on,  423,  451. 

broker  not  entitled  to  full  commission  where  shortage  is  found,  451. 
purchaser  may  recover  for  shortage  in  acreage,  299. 


Railroad,  38,  526,  1000,  1005. 
Ranch,  454,  550,  1023. 


INDEX.  .  St9 

[References  are  to  sections.] 

Eatification  of  contract,  24,  50,  57,  321,  557,  572,  619,  620,  620a,  621,  622, 
623,  624,  797,  858,  895,  1030. 
what  is  not  a,  18,  24,  295,  415,  458,  567,  618,  618a. 
once  made,  cannot  be  revoked,  24. 
Real  estate,  contracts  for  the  sale  of,  17. 
options  on,  82-111. 
sales  of,  112-148. 
leases  of,  196-221. 
loans  on,  222-257. 
mortgages  on,  258-275. 
liens  on,  283-289a. 

commission,  proper  charge  on  trust,  35. 
Beasonable  bill  for  extra  compensation,  examined  to  see  if,  231. 
care  in  selecting  sub-agent,  394. 
commissions,  items  paid  agents  shown  to  be,  35. 
corporation  liable  to  officers  only  for,  38. 
compensation,  broker  procuring  option  entitled  to,  83. 

broker  entitled  on  procuring  lease,  in  absence  of  special  contract 

to,  196. 
plaintiff  entitled  to  recover  excess  withheld,  less  a,  298. 
net  to  owner,  broker  selling  at  excess  entitled  to  a,  481. 
for  finding  a  purchaser  broker  entitled  jto  a,  557. 
subject  of,  616. 

failing  to  prove,  may  recover,  639. 
price  inferred  by  law,  610. 

time  within  which  a  power  must  be  accepted,  26. 
for  broker  to  perform  service,  479. 
employment  of  broker  continues  for  a,  612,  613. 
what  is  a,  611. 
when  immaterial,  614. 
what  constitutes  a,  1080. 
value  of  broker's  services  in  procuring  loan,  228. 

value  of  broker's  services  recoverable  in  absence  of  express  agreement, 
615. 
Receiver,  314. 

Reciprocal  obligations  on  principal  as  well  as  on  agent,  290.- 
Reconveyance  of  property,  301,  314,  607. 
Record,  260,  290,  640. 

Receipts,  41,  184,  221,  379,  383,  384,  385,  576,  772,  1072. 
Recoupment,  309,  321. 
Recovery  of  commissions,  554. 
of  money  from  broker,  642. 

of  commissions  without  showing  performance,  641. 
Recovery  upon  implied  contract,  712a. 
Refusal  to  accept  loan,  242. 

to  take  because  customer  does  not  own,  154. 


680  INDKX. 

fReferences  are  to  sections.] 

Refusal  to  exchange,  when  fraud  no  ground  for,  155. 

by  lessor  to  assign  lease,  216, 

of  purchaser  -to  "sign  contract  of  sale,  298,  458,  617,  534. 

of  owner  to*  execute  contract  of  sale,  313,  374,  375,  454,  456. 

of  principal  'to  appraise,  434. 

of  purchaser,  who  knew  real  length,  to  take  fot,  435,  451. 

of  purchaser  to  take  lot,  where  broker  knew  size,  451. 

of  wife  to  join  in  d'eed,  454. 
Refunding  commissions,  320,  382,  572. 
Rejected  contract  of  sale,  642a. 

Reject  offer,  when  principal  caimot  and  escape  liability  for  oonnnission,  362. 
Relations,  broker  and  sub-agent  similar  to  principal  and  agent,  619. 
Release,  19,  67,  238,  289,  379,  380,  514,  1068. 
Relief,  when  denied,  314. 
Relinquishment,  516. 
Remark,  effect  of,  1090. 
Remedies.     See  Actions. 

Remedy,  pursuing  one  barred  any  other,  414a. 
Reimburse/nent,  314,  595,  607. 

-Rent,  22,  41,  199,  207,  314,  381,  386,  387,  510,  558,  927. 
Renewal,  waiver  of  privilege  of,  206. 

Repairs  broker  authorized  to  make,  not  permanent  improvement,  372. 
Reply,  630. 

that  was  not  a  ratification,  618a. 
Representations  as  to  dimensions  of  property,  451. 
Repudiation  or  rescission,  23,  24,  35,  41,  127,  300,  321,  436,  558,  924. 
Restriction  in  chain  of  title,  43. 
Restitution  before  repudiation,  23. 
Res  gestae,  755,  834,  835. 

Retainer,  when  broker  taking  from  purchaser  allowable,  454. 
Retroactive,  law  requiring  contract  employing  broker  to  be  in  writing  not, 

1125. 
Reversal,  to  work,  errors  must  have  been  prejudicial,  1078a. 
Revived,  agency  terminated,  not  by  subsequent  acts,   15. 
Revocation  of  authority  granted  to  agent,  13,  15,  22,  79,  84,  80,  300,  328d, 

358,  421,  454,  510,  516,  521,  802,  988,  1110. 
Rights,  duties  and  liabilities  of  principal  and  agent,  pt.  3,  Sec.  290-422. 

effect  of  concealment  upon,  291. 

to  commission  not  defeated  because  to  be  paid  from  purchase  money, 
501. 
Right  to  sell  not  implied  by  advertisement  on  land,  128. 

of  broker  to  agreed  commissions,  423,  423a. 

to  withdraw  if  tit!e  bad,  exercised,  bars  commission,  517,  534. 

of  broker  to  commmission  regardless  of  title  of  customer,  533. 
Rights  of  third  persons,  290,  386,  416. 

of  broker  depend  on  new  contract,  411. 


INDEX.  681 

[References  are  to  sections.] 

Right  to  conveyance  by  agent,  462. 

to  commissions,  when  modified,  479. 

to  commissions,  not  affected  by  owner's  suppoeitions,  528. 

of  two  heirs  not  acquired,  555. 

of  action  for  commission  when  accrues  to  broker,  632b. 

of  immunity,  estopped  from  asserting,  601, 
Rival  brokers,  137,  424,  616,  618,  608,  909,  1024. 


Sale,  consolidation  of  interest  not  a,  66. 

employed  to  sell  who  secures  a  mere  option,  85. 

by  owner,  subject  to  option,  not  breach  of  contract,  91. 

by  owner  before  expiration  of  option,  110. 

if  terms  omitted,  satisfactory  to  principal  implied,  112. 

according  to  terms  entitles  broker  to  commission,  113. 

contract  of,  may  be  established  by  circumstantial  evidence,  114. 

judicial,  115. 

nominal  broker  not  entitled  to  commission  for,  116. 

enjoined,  broker  entitled  to  commission,  118,  469. 

broker  must  effect  to  earn  commission,  119. 

withdrawal  from  entitled  broker  to  commission,  120. 

properties  for  others  and  cash  difference,  a,  121,  164. 

miscarrying  without  fault  of  principal  broker  not  entitled  to  com- 
mission, 122. 

by  wrong  description,  broker  not  entitled  to  commission,  123. 

single,  not  doing  business  to  need  license,  124,  576. 

forced  with  joint  owner,  broker  not  entitled  to  commission,  125. 

by  broker  to  resell  no  fraud,   126. 

ineffectual  where  broker  had  no  right  to  make  it,  127. 

advertisement  on  land  does  not  imply  right  of,  128. 

to  find  purchaser,  none  to  make,  120a. 

agent  buying  at  inadequate  price  by  fraud,  set  aside,  130. 

agent  becoming  purchaser  unknown  to  principal,  set  aside,   131. 

without  effort  accepted  entitles  broker  to  commission,    132. 

contract  may  require  a,  to  entitle  broker  to  commission,   133. 

at  $3.'>0,  when  limited  to  $400,  broker  not  entitled  to  commission,  134. 

at  $1,500,  after  asking  lower  terms,  unauthorized,  135. 

at  $1,500,  while  land  increasing  in  value,  unauthorized,  18. 

without  special  contract,  broker  to  earn  commission  requires  a,  136. 

by  one  of  rival  brokers  ends  contract  with  others,  137. 

whether  broker  entitled  to  commission  for  both  auction  and  private, 
a  question  for  jury,   138. 

by  broker  of  property  acquired  from  principal  liable  to  latter,  139. 

without  written  authority  excepted  from  statute  of  frauds,   140. 


682  INDEX. 

[References  are  to  sections.] 

Sale,  by  second  agent  to  client  of  first,  latter  not  entitled  to  commission, 
141. 

by  owner  before  sale  by  agent  bars  commission,  142. 

disagreement  as  to,  acquiesced  in  by  broker,  bars  commission,  143. 

for  cash  complied  with  by  payment  on  execution  of  deed,  144. 

of  public  land,  broker  to  earn  commission  must  show  what,  146. 

plaintiff  to  plat  and  sell  and  pay  $150  an  acre  to  defendant,  a  contract 
of,  147. 

broker  failing  to  sell  and  owner  selling  to  customer,  broker  not  en- 
titled to  commission,  148. 

power  to  make  does  net  include  power  to  lease,  exchange,  or  mortgage, 
167,  202,  263. 

lease  with  privilege  of  purchase  equivalent  to,  200. 

broker  bringing  about  entitled  to  commission,  215,  491. 

of  lease  frustrated  by  lessor,  broker  not  entitled  to  commission,  216. 

under  power  in  mortgage  not  necessary  to  inform  mortgagor,  259. 

conditional  of  mortgage,  broker  securing,  272. 

of  bonds  declared  illegal  deprives  broker  of  commission,  276. 

broker  selling  bonds  entitled  to  commission  on  procuring  buyei,  277. 

broker  not  entitled  to  commission  for  selling  bonds  on  buyer  with- 
drawing, 278. 

delivering  bonds,  without  disclosing  principal,  liable  if  null  and  void, 
279. 

broker  selling  bonds  in  good  faith  not  liable  to  trust  estate  for 
illegal,  280. 

authority  of  village  to  sell  bonds  includes  authority  to  employ 
broker,  281. 

by  agent  to  principal  of  his  own  property  set  aside,  321. 

power  confirming,  confers  power  to  sell,  322. 

power  to  sell  in  lots  confers  none  to  sell  otherwise,  340. 

broker  to  sell  land  can  take  nothing  but  money,  342. 

broker  not  liable  for  poor  sale  by  sub-agent,  394. 

to  others  than  syndicate  by  owner  bars  commission,  406. 

for  all  cash  complies  with  authority  for  half  casli,  410. 

broker  to  sell  for  half  casn,  remainder  on  time,  cannct  sell  for  all 
cash,  410a. 

authority  to  make  for  specified  sum  is  for  cash  only,  422a. 

at  less  than  fixed  price,  broker  not  entitled  to  commission,  426. 

broker  negotiating  with  two,  sale  to  one  by  owner  bars  commis- 
sion, 432. 

void  by  statute,  broker  not  entitled  to  commission,  433. 

broker  nn.successful  with  F.  and  sale  by  owner  to  him  and  others 
bars  commission,  437. 

unless  exclusive,  broker  not  entitled  to  commission  on  sale  by  an- 
other agent,  439. 


INDEX.  683 

[Refereiicos  are  to  sections.] 

Sale,  broker  entitled  on  sale  by  owner  to  commission  on  share  of  two 
tenants  in  common,  440. 

broker  whO'  first  succeeds  in  making,  entitled  to  commission,  445. 

broker  who  was  the  procuring  cause  of,  entitled  to  commission,   17, 
446. 

by  principal  uninfluenced  by  broker,  latter  not  entitled  to  commission, 
42,  454. 

failure  of  broker  to  make  a,  457. 

failure  of  broker  to  consummate  contract  of,  458. 

failure  of  by  defect  in  title,  459. 

at  net  price,  broker  not  entitled  to  commission,  482. 

by  principal  without  notice  to  broker  before  time  expired,  490. 

broker  entitled  to  commission  on  sale  of  four  houses,  not  entitled  to 
proportionate  for  one,  493. 

commission  payable  on,  and  not  on  collection  of  deferred  payments, 
498. 

cases  in  which  broker  was  held  not  to  be  procuring  cause  of,  507. 

frustrated    through    failure    to    partition,    broker    entitled    to    com- 
mission, 508. 

made   after    revocation   of    authority   entitled    sub-agent    to   commis- 
sion, 521. 

made  at  reduced  price,  sub-agent  not  entitled  to  commission,  524. 

to  railroad   instead  of  to   syndicate  entitled  to  commission,  526. 

other   than   contemplated,   broker   entitled   to   commission,   -3:^7. 

on  making,  broker  not  deprived  of  commission  by  defect  in  title.  533. 

defeated  by  want  of  title,  which  he  knew  broker,  not  entitled  to  com- 
mission, 539. 

failing  by  dispute  over  taxes  broker  not  entitled  to  cor^niission,  541. 

withdrawal  of  land  from  entitled  broker  to  commission,  552. 

withdrawal  and  sale  by  owner  to  customer,  in  good  fait!i,  bars  com- 
mission 553. 

failing  because   rights  of  two  heirs  not  acquired,   broker  entitled   to 
commission,   555. 

to  customer  after  employment  ended  bars  commission,  558. 

in  trying  to  effect  sale  of  real  estate  party  may  extravagantly  extol, 
586. 

for  less  than  broker  claims,  defendant  cannot  object,  627. 

admitted,  broker  entitled   to   reasonable   compensation,   615a. 

executed,  when  inadmissible  in  evidence,  767. 

of  bonds  released  from  registry  through  forgery,  38,  574. 

broker  not  liable   to   principal   for   money   paid   purchaser   on   reject- 
ed, 642a. 

of  land  by  broker  entitled  him  to  commission  no  notice  of  revocation 
having  been  given,  1110. 
Sales  of  real  estate,  112-148. 
Sancho  Panza  Verdict,  1063,  1070. 


684  INDEX. 

[References  are  to  sections.] 

Sanitarium,  300. 

Satisfactory  to  purcha-ser,  option,*  100. 

principal.     See  Terms  of  Salk. 
School  building,  327. 
Scope  of  employment,  18,  298,  521,  560,  664,  992. 

of  the  petition,  1034. 
Seals  and  the  necessity  for  their  use,  592. 
Secret  understanding,  221,  401. 

commission  paid  to  vendee's  agent,  401. 
Secretly  employed,  166,  290,  291,  400. 

securing  new  term  to  himself,  broker  holds  as  trustee,  203. 

learning  price  of  property,  399. 
Securities,  257,  283,  287,  357,  403,  630. 
Security,  broker  may  be  responsible  for  the  sufficiency  of,  229,  403. 

of  real  estate,  broker  effecting  loan  on,  533. 
"Sell,"  meaning  of  the  term,  18,  26,  328h,  557. 
Sequence  broken,  and  its  effect,  448. 
Set  aside,  verdict  for  procuring  loan,  252. 
Severable  contract  for  effecting  an  exchange,  176. 

for  effecting  a  sale,  560,  1116. 
Sharing  commissions,  291,  314,  396,  397,  520,  522,  558,  696a,  791,  808. 

agreement  between  two  brokers  therefor,  bars  oonunissions,  371. 

profits,  497. 
Sign  on  property  as  for  sale  by  agent,  42. 
"Signed,"  subscribed  equivalent  to,  78. 
Signature  of  principal  by  agent,  74,  75,  76,  77. 
Silence,  when  equivalent  to  approval,  24. 

when  it  does  not  ratify  an  unauthorized  act,  24. 
Silent  where  evidence  is  as  to  previous  sales,  800. 
Skill,  broker  required  to  exercise  that  of  calling,  402. 
Snow  and  ice,  failure  to  remove  from  sidewalk,  591. 
South  Dakota,  contract  with  broker  to  sell  land  must  be  writing,  690. 
Specific  performance,   18,  295,  307a,  314,  572,  630,  718,  762. 
Speculate  off  of  his  principal,  broker  forbidden  to,  37. 
Stale  authority,  sale  under  will  not  be  specifically  enforced,   18. 
Statutory   commissions,  broker  charging  more  limited   to,   241. 
Statute  of  frauds,  34,  41,  140,  404,  433,  492,  590,  605,  606,  609,  668. 

of  limitations,  28,  286,  607. 
Statutes,  433,  600,  773,  1093. 

Stipulation  as  to  payment  of  commissions,  557,  570. 
Stock,  commissions  payable  in,  468,  480. 

broker  entitled  to  commission  from  sale  of,  1095. 
Sub-agents,    11,    24,    25,    26,    42,    79,    291,    300,   316,    317,    390,    391,    392, 
393,    394,    395,    396,    397,    398,    497,    519,    520,    520a,    521,    622, 
623,  524,  525,  557,  558,  907,  912. 
Sub-delegated,  acts  that  cannot  be,  5. 


INDEX.  '  685 

[References  are  to  sections.] 

Sub-letting,  213. 

Subrogation,  when  vendor  not  entitled  to,  572. 

Substitution,  power  unauthorizing,  26 

of  contract  for  that  sued  on  defeats",  638. 
Suppositions,  broker's  right  to  commission  not  affected  by  owner's,  528* 
Survey,  18,  26,  339. 
Syndicate,  28,  405,  406,  464,  526,  607,  1000. 


Taxes,  41,  171,  529,  541,  542,  1085. 
Telegram  must  reach  owner,  when,  80,  81. 

broker  failing  to  name  purchaser  in,  530. 
Telegraph  company  not  agent  of  owner  as  to  notice,  80. 
Telephoning,  mistake  in,  444. 

Tenant,  agent  in  charge  of  real  estate  procuring,  entitled  to  reoover  on 
quantum  meruit,  510. 

broker  for  has  no  claim  on  lessor  for  commission,  208. 

petition  to  recover  for  services  in  procuring,  650. 
Tenants,  owner  liable  for  injuries  to  prospective,  347. 

lessor's  rights  not  affected  by  broker's  secret  understanding  with,  221. 

in  common,  290,  407,  440. 

in  common,  interest  of,  64. 
Tender,  in  action  for  commissions  not  necessary  to  prove,  236. 

of  payment,  when  necessary  must  be  shown,  557,  570. 

when  not  necessary,  436,  593,  625. 

on  broker  taking  title  to  land  purchased,  principal  my  tender  amount 
and  demand  deed,  595. 
Tentative,  defendant  can  show  contract  of  lease  merely,  218. 
Terms,  when  changed  by  parties  broker  entitled  to  commission,  175 

broker  to  earn  commission  for  loan,  must  show  on  same,  226 

of  sale,  if  omitted  satisfactory  to  principal  implied,   12,   112,  328b. 

making  contract  contrary  to,  defeats  commission,  41,  409. 

of  sale  or  exchange,  commission  earned  when  both  parties  agree  on, 
191,  532. 

of  loan  to  be  satisfactory  to  lender,  on  refusal  broker  not  entitled  to 
commission,  225. 

broker  failing  to  disclose  best,  bars  commission,  412. 

of  agreement  a  question  for  the  jury,  916. 

broker  effecting  sale  on  lower,  408. 

of  half  cash  complied  with  by  sale  for  all,  410. 

if  agreed  on  right  to  commission  cannot  l>e  defeated,  454. 

if  broker  departs  from,  principal  ratifying  cures,  557. 

of  sale  objected  to,  evidence  that  sale  conformed  with  instructions,  668. 

of  employment.    See  Employment,  Terms  of. 


686  INDEX. 

[References  are  to  sections.1 

Texas,  doctrine  ot  quantum  meruit  for  partial  performance  of  entire  con- 
tract, 546a. 
Theater,  unconsummated  lease  of,  216a. 
Theory  of  the  case,  instructions,  1008,  1034. 
Third  persons,  fraudulent  representations  by,  454. 

failing  to  buy  by  defect  in  title,  broker  not  entitled  to  commission,  458. 
Timber,  sale  of  standing,  454,  511,  512,  572. 

land,  alteration  of  contract  to  sell,  485. 

erroneous  charge  in  regard  to  sale  of,  991. 

agent  to  sell  without  authority  to  grant  license  to  cut,  330. 
Time,  principal  selling  before  expiration  of,  490. 

broker  has  no  right  to  extend  for  payment  of  purchase  money,  18,  01. 

directing  broker  to  sell  after  expiration  of,  extends,  42. 

limit  in,  when  does  not  defeat  broker's  right  to  commission,  454,  479, 
482. 

■what  is  a  reasonable  depends  on  circumstances  in  each  case,  611. 

fact  which  failed  to  show  extension  of,  18. 

broker's  employment  continues  for  a  reasonable,  612,  613. 

immaterial,  where  broker  finds  purchaser  while  employed,  614, 

extension  of  should  be  pleaded,   1101. 
Time  of  the  essence  of  the  contract,  15,  26,  556. 

for  performance,  whether  waived  a  question  for  the  jury,  919. 
whether  limit  placed  on  a  question  for  jury,  922.  ■ 

evidence  of  length  of,  of  land  for  sale,  750. 
Title  papeirs,  contract  of  agency  ceases  on  delivery  of,  14. 

owner  not  required  to  inform  broker  of  restrictions  in  chain  of,  43. 

abstract  of,  32,  179,  225,  248,  250,  501,  5b4,  570,  597,  999. 

defect  in  defeating  sale,  loan  or  exchange,  12,  156,  223,  314,  459,  533, 
535,  1071. 

supposed  defect  in  defeating  sale,  537. 

principal  receiving  good  to  property  exchanged,   152. 

contract  to  convey  not  sufficient  evidence  of,  159. 

or  interest  in  properties  exchanged,  broker  has  no,  172. 

suit  for  clearing,  514,  809. 

reserving  right  to  withdraw  if  found  defective,  517. 

when  not  necessary  to  show  vendor  has  clear,  596. 

defect  in  defeating  loan,  223,  225,  248,  250. 

petition  for  commission  on  passing  of,  defective,  649. 

loan  refused  for  defective,  broker  not  entitled  to  commission,  223,  225. 

loan  refused  for  defective,  broker  entitled  to  commission,  240. 

loan  refused  for  defective,  broker  to  recover  commission  must  prove, 
240a. 

where  broker  undertook  to  examine,  liable  for  loss  from  unpaid  mort- 
gage, 261. 

broker  knowing  defect  in,  cannot  himself  acquire,  345. 

unless  clothed  with  power  by  owner  no  one  can  transfer,  413. 


INDEX.  687 

[References  are  to  sectionsj 

Title,  equitable,  311. 

cloud  on,  514. 

principal  securing  good,  invalidity  of  contract,  unavailing,  454. 

contiact  drawn  to  bar  commission  in  case  of  defect  in,  459. 

customer  reserving  right  to  withdraw  if  defective,  if  exercised,  bars 
commission,  517. 

time  given  to  examine,  14. 

payment  of  commissions  may  depend  on  transfer  of,  536. 

whether  principal  or  another  holds,  broker  entitled  to  commission,  538. 

sale  defeated  by  want  of,  which  he  knew,  broker  not  entitled  to  com- 
mission, 539. 

ignorance  of  contract  by  holder  of  record,  540. 

taken  by  agent,  principal  may  tender  amount  and  demand  deed,  595. 

when  not  necessary  for  broker  to  show  vendor  had  a  clear,  596. 
Tort,  40,  298,  321,  414. 

Transacting  all  business,  agent  may  collect  payment  of  note,  356. 
Transaction  not  in  fraud  of  plaintilF,  126. 

receipt  in  another  inadmissible,  184. 

consummation  of,  570. 

broker  acting  for  others  not  entitled  to  share  in,  388. 

concluded  without  aid  of  broker,  454. 
Trusts  and  trustees,  35,  37,  203,  280,  288,  295,  314,  345,  359,  576,  635. 
Trust  company  to  buy  and  sell  real  estate  not  a  broker,  8. 
Turpentine  rights,  fatal  variance,  878. 
Typical  cases  in  which  sub-agent  held  entitled  to  commission,  523. 


u 

Ultimate  facts  must  be  pleaded,  632. 

Unavailing  efforts  cf  broker  do  not  entitle  to  compensation,  290,  543,  558, 

630. 
Unauthorized   condition,   broker   not  entitled   to   commission   for   contract 

subject  to,  547. 
Uncertainty  of  identity,  must  be  established  by  evidence,  831a. 
Unconscionable  demand,  amendment  to  set  up  refused,  667. 
Unconstitutionality  of  statute,  600. 
Undelegatable,  certain  acts  are,  4,  5. 

Understanding  contract  of   sale  by  principal   unimportant,  557. 
Undertaking.    See  Performance. 
Undisputed,  if  evidence  on  any  given  fact  is,  court  should  so  instruct,  939, 

1044. 
Undisclosed  agreement  to  divide  commission  with  purchaser  does  not  bar 

right  to  commission,  545,  557. 
principal,  41,  279,  452,  583,  601. 
Undivided  interest,  63. 


688  INDEX. 

[References  are  to  sections.] 

Unenforceable,  where  broker  must  be  authorized  in  writing,  contract  with- 
out, 602,  603. 

Unexpert  witnesses,  evidence  of,  766. 

Unilateral  contracts,  20. 

Uninterrupted,  to  entitle  broker  to  commission  for  sale  negotiations  must 
be,  544. 
negotiations  after  expiiation  of   time  entitled   broker  to   commission, 
557. 

Universal,  custom  or  usage  must  be  to  become  a  matter  of  law,  598. 

Unlawful  commissions,  sub-agent  denied  recovery  of,  522. 
that  which  is  contrary  to  law,  etc.,  559. 

Unlicensed  broker,  contract  by  not  absolutely  void,  604. 

Unsatisfactory,  if  any  of  the  terms  of   the  contract  be,  principal   should 
object  on  that  ground,  42. 

Unsuccessful  negotiations  with  F.  and  sale  by  owner  to  him  and  others, 
bars  commission,  437. 

Usage.    See  Custom  and  Usage. 


Vacant  property,  757. 

Values,  149,  185,  194,  196,  227,  228,  294,  416,  461,  558,  572,  615,  742,  754, 

762,  782,  785,  796,  798,  801,  811,  1045,  1076. 
Vague,  broker  not  entitled  to  commission  for  contract  too,  for  enforcement, 

551. 
Vagueness  of  terms  of  contract  immaterial,  if  minds  of  parties  met,  557. 
Variances,    41,    307a,    409,    428,    428a,    428b,    515a,    531,    550,    587,    704a, 

874-887a. 
Validity  of  sale,  when  purchaser  cannot  insist  upon,  314. 
Vendor,  40,  73,  143,  290,  374,  401,  436,  531. 
Vendee.     See  Pubchaser. 

Verbal  contract  for  sale  of  land,  no  rights  in  equity  out  of,  589. 
Verdicts,  252,  1046,   1054-1064,   1065a,  1076b. 
Vested  remainder,  broker  procuring  purchaser  on  different  terms  for,  barred 

commissions,  548. 
Village,  authority  to  borrow  money,  281,  328o. 
Violation  of  instructions  warranted  terminating  agency,  15,  290. 

action  by  principal  for  damages  for,  299. 

by  sub-agent,  395. 
Voidable,  deed  not  void  but,  572. 

Void,  broker  procuring  contract  to  be,  if  first  payment  fails,  not  entitled 
to  commission,  549. 

where  contract,  by  statute  of  frauds,  broker  barred  commission,  433. 

contract  by  unlicensed  broker  not  absolutely,  604. 

See  also  Null,  and  Void. 


INDEX.  689 

[References  are  to  sections.] 

Voluntary  payment  by  defrauded  party,  no  defense  to  agent»  693bb 
Volunteers,  443, 

w 

Waiver.    See  also  Acquiescence. 

of  tenant's  privilege  of  renewal  binds  principal,  206. 

of  performance,  14,  515. 

of  notice  by  principal,  361. 

of  variance  in  contract  by  acquiescence,  515a. 

of  tender,  625. 

a  question  for  the  jury,  919. 
Warranty,  power  to  sell  and  convey  includes  power  to  give,  26,  328k,  417. 

in  other  States  the  power  must  be  specifically  conferred,  418. 

of  authority,  39,  300,  328n,  569. 
Washington,  State  of,  contract  with  broker  to  sell  land  must  be  in  writing, 

690. 
Whole  value  of  property,  broker  entitled  to  commission  upop,  186. 

price,  tender  of  by  purchaser,  557. 
Wife  and  husband,  39,  454,  774,  826,  908,  1022,  1057. 
Withdraw,  where  right  to  exercised,  broker  barred  commission,  534. 
Withdrawal  of  broker's  authority  to  sell,  deed  not  a,  57. 

of  land  from  sale,  under  contract  entitled  broker  to  commission,  120, 
552. 

of  land   from   sale,   contract  to   pay   commission  upon   strictly  con- 
strued, 585. 

end  sale  by  owner,  in  good  faith,  bars  broker's  commission,  17,  653. 

before  contract,   options  with   such   liberty  do  not  entitle  broker  to 
commission,  95. 

by  purchaser  after  commission  paid  to  broker,   principal   cannot  re- 
cover,  554. 

sale  by  owner  after,  error  to  submit  to  jury,  917. 
Will,  5,  34. 
Witnesses,  where  instrument  to  be  executed  requires  two,  power  must  have 

same  number,  26. 
Words  and  phrases. 

"amount,"   1123. 

"solicit,"  1005a. 

"title  to  the  satisfaction  of  purchaser,"  1126. 

"timber,"  1127. 

"pecuniarily  able,"  1130. 

"placed  in  the  hands  of,"  367. 

"sell,"   18,  26,  328h,  657. 

"sale,"  121. 

"subscribed,"  78. 

"irrevocable,"  18. 


INDEX. 
TReferences  are  to  sectiona] 

yfords  &i^'phtaBe!,9'— Continued.  ,,.i  ■ , 

"my  real  and  personal  estate,"  26.  ''  • 

"for  and  on  behalf,"  68. 

"my  property,  48  Eldridge  Court,"  69, 

"drunkenness,"  60. 

"as  to  loans  made  by  us,"  62. 

"net  rental,"  17,1.  .' '.' 

"to  get  a  deal,"  455,  667.   '  "      '' 

"net  cash,"  485. 

"any  trade,"  527. 

"Abbey  Ranch,"  550. 

"advertisement,"  561. 

"in  full  settlement,"  562. 

"accepted,"   567. 

"this  week,"  577. 

f immediately,"  580. 

"negotiate,"  18,  1082. 

"broker,"  7. 

"taxes,"  1085. 

"sold,"  1112. 

"divide,"  1086. 

"bringing  the  seller  and  purchaser  together,"  33. 
,    "list,"  1117. 

"exclusive  agency,"   13. 
Writing,  contract  to  divide  commissions  must  be  in,  79. 

contract  for  the  sale  of  real  estate  in  many  States  need  not  be  in,  419. 

contract  hiring  auctioneer  need  not  be  in,  605. 

contract  required  to  be  in,  without  unenforceable,  602. 
Written  instruments,  alteration*  in,  293. 

construction  of  for  the  court,  897. 
Written  contract,  broker  authorized  to  make,  cannot  make  oral,  363- 

necessary,  failing  to  show,  rest  immaterial,  647. 


^'^^''lOS  ANGELES 


IliHSnS'i.SfG'ONALUBRARV 


A     000  698  203     7 


